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The President

Study Material > Polity
  • Articles 52 to 78 in Part V of the Constitution deal with the Union executive.
  • The Union executive consists of the President, the Vice-President, the Prime Minister, the council of ministers and the attorney general of India.
  • Ordinarily, the executive powers indicate the residue of the Government functions that remains after the judicial and legislative functions are taken away.
  • Article 52 states that there shall be a President of India. The President is the head of the Indian State. The President symbolises the entire nation as one political community. He is the first citizen of India and acts as the symbol of unity, integrity and solidarity of the nation.

ELECTION OF THE PRESIDENT

  • The constitution provides for the election of the President by the system of proportional representation by means of the single transferable vote. The voting is by Secret Ballot.
  • The provisions dealing with the election of the President are provided in Articles 54 and 55 and the President and the Vice-President (Elections) Act of 1952.
  • The President is elected not directly by the people but by members of electoral college consisting of:
    1. the elected members of both the Houses of Parliament;
    2. the elected members of the legislative assemblies of the states; and
    3. the elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.
  • Thus, the nominated members of both of Houses of Parliament, the nominated members of the state legislative assemblies, the members (both elected and nominated) of the state legislative councils (in case of the bicameral legislature) and the nominated members of the Legislative Assemblies of Delhi and Puducherry do not participate in the election of the President.
  • Where an assembly is dissolved, the members cease to be qualified to vote in presidential election, even if fresh elections to the dissolved assembly are not held before the presidential election.
  • The Constitution provides that there shall be uniformity in the scale of representation of different states as well as parity between the states as a whole and the Union at the election of the President. Article 55 provides the formulae to workout the value of vote of a MLA and that of a MP. To achieve this, the number of votes which each elected member of the legislative assembly of each state and the Parliament is entitled to cast at such election shall be determined through the following formulae:

  • This means that value of the vote of an MLA differs from one State to another.

  • To be declared elected to the office of the President, more than 50% of the valid votes are required by a Presidential candidate.
  • Supreme Court is the authority to decide disputes regarding President’s and Vice-President’s election, whose decision is final.
  • The Constitution makers chose the indirect election due to the following reasons:
    1. The indirect election of the President is in harmony with the parliamentary system of government envisaged in the Constitution. Under this system, the President is only a nominal executive and the real powers are vested in the council of ministers headed by the prime minister. It would have been anomalous to have the President elected directly by the people and not give him any real power.
    2. The direct election of the President would have been very costly and time- and energy- consuming due to the vast size of the electorate. This is unwarranted keeping in view that he is only a symbolic head.
  • Some members of the Constituent Assembly suggested that the President should be elected by the members of the two Houses of Parliament alone.
  • The makers of the Constitution did not prefer this as the Parliament, dominated by one political party, would have invariably chosen a candidate from that party and such a President could not represent the states of the Indian Union.
  • The present system makes the President a representative of the Union and the states equally.

Qualifications for Election as President

  • Article 58 of the Constitution sets the principle qualifications one must meet to be eligible to the office of the President. A President must :
    1. be a citizen of India.
    2. be of 35 years of age.
    3. be qualified for election as a member of the Lok Sabha.
    4. not hold any office of profit under the Union government or any state government or any local authority or any other public authority.
  • A sitting President or Vice-President of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit and hence qualified as a presidential candidate. In the event that the Vice-President, a State Governor or a Minister is elected President, they are considered to have vacated their previous office on the date they begin serving as President.
  • Further, the nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders.
  • Every candidate has to make a security deposit of Rs 15,000 in the Reserve Bank of India. The security deposit is liable to be forefeited in case the candidate fails to secure one-sixth of the votes polled.

Oath or Affirmation by the President

  • Before entering upon his office, the President has to make and subscribe to an oath or affirmation. In his oath, the President swears:
    1. to faithfully execute the office;
    2. to preserve, protect and defend the Constitution and the law; and
    3. to devote himself to the service and well-being of the people of India.
  • The oath of office to the President is administered by the Chief Justice of India and in his absence, the seniormost judge of the Supreme Court available.
  • Any other person acting as President or discharging the functions of the President also undertakes the similar oath or affirmation.

Conditions of President’s Office

  • The Constitution lays down the following conditions of the President’s office:
    1. He should not be a member of either House of Parliament or a House of the state legislature. If any such person is elected as President, he is deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
    2. He should not hold any other office of profit.
    3. He is entitled, without payment of rent, to the use of his official residence (the Rastrapathi Bhavan).
    4. He is entitled to such emoluments, allowances and privileges as may be determined by Parliament.
    5. His emoluments and allowances cannot be diminished during his term of office.
  • The President is entitled to a number of privileges and immunities. He enjoys personal immunity from legal liability for his official acts.
  • During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned.
  • However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

Term of President’s office

  • The President holds office for a term of five years from the date on which he enters upon his office. However, he can resign from his office at any time by addressing the resignation letter to the Vice- President.
  • Further, he can also be removed from the office before completion of his term by the process of impeachment.
  • The President can hold office beyond his term of five years until his successor assumes charge. He is also eligible for re-election to that office.
  • He may be elected for any number of terms. However, in USA, a person cannot be elected to the office of the President more than twice.

Impeachment of President

  • The President can be removed from office by a process of impeachment for ‘violation of the Constitution’. However, the Constitution does not define the meaning of the phrase ‘violation of the Constitution’.
  • The impeachment charges can be initiated by either House of Parliament.
  • These charges should be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice should be given to the President.
  • After the impeachment resolution is passed by a majority of two-thirds of the total membership of that House, it is sent to the other House, which should investigate the charges.
  • The President has the right to appear and to be represented at such investigation. If the other House also sustains the charges and passes the impeachment resolution by a majority of two-thirds of the total membership, then the President stands removed from his office from the date on which the bill is so passed.
  • Thus, an impeachment is a quasi-judicial procedure in the Parliament.
  • In this context, two things should be noted:
    1. the nominated members of either House of Parliament can participate in the impeachment of the President though they do not participate in his election;
    2. the elected members of the legislative assemblies of states and the Union Territories of Delhi and Puducherry do not participate in the impeachment of the President though they participate in his election. No President has so far been impeached.

Vacancy in the President’s Office

  • A vacancy in the President’s office can occur in any of the following ways:
    1. On the expiry of his tenure of five years.
    2. By his resignation.
    3. On his removal by the process of impeachment.
    4. By his death.
    5. Otherwise, for example, when he becomes disqualified to hold office or when his election is declared void.
  • When the vacancy is going to be caused by the expiration of the term of the sitting President, an election to fill the vacancy must be held before the expiration of the term.
  • In case of any delay in conducting the election of new President by any reason, the outgoing President continues to hold office (beyond his term of five years) until his successor assumes charge.
  • This is provided by the Constitution in order to prevent an ‘interregnum’. In this situation, the Vice-President does not get the opportunity to act as President or to discharge the functions of the President.
  • If the office falls vacant by resignation, removal, death or otherwise, then election to fill the vacancy should be held within six months from the date of the occurrence of such a vacancy. The newly- elected President remains in office for a full term of five years from the date he assumes charge of his office.
  • When a vacancy occurs in the office of the President due to his resignation, removal, death or otherwise, the Vice-President acts as the President until a new President is elected. Further, when the sitting President is unable to discharge his functions due to absence, illness or any other cause, the Vice-President discharges his functions until the President resumes his office.
  • In case the office of Vice-President is vacant, the Chief Justice of India (or if his office is also vacant, the seniormost judge of the Supreme Court available) acts as the President or discharges the functions of the President.
  • When any person, ie, Vice-President, chief justice of India, or the seniormost judge of the Supreme Court is acting as the President or discharging the functions of the President, he enjoys all the powers and immunities of the President and is entitled to such emoluments, allowances and privileges as are determined by the Parliament.

POWERS AND FUNCTIONS OF THE PRESIDENT

  • The powers enjoyed and the functions performed by the President can be studied under the following heads.
    1. Executive powers
    2. Legislative powers
    3. Financial powers
    4. Judicial powers
    5. Diplomatic powers
    6. Military powers
    7. Emergency powers
  • Executive Powers: The executive powers and functions of the President are:
    1. All executive actions of the Government of India are formally taken in his name.
    2. He can make rules specifying the manner in which the orders and other instruments made and executed in his name shall be authenticated.
    3. He can make rules for more convenient transaction of business of the Union government, and for allocation of the said business among the ministers.
    4. He appoints the prime minister and the other ministers. They hold office during his pleasure.
    5. He appoints the attorney general of India and determines his remuneration. The attorney general holds office during the pleasure of the President.
    6. He appoints the comptroller and auditor general of India, the chief election com-missioner and other election commissioners, the chairman and members of the Union Public Service Commission, the governors of states, the chairman and members of finance commission, and so on.
    7. He can seek any information relating to the administration of affairs of the Union, and proposals for legislation from the prime minister.
    8. He can require the Prime Minister to submit, for consideration of the council of ministers, any matter on which a decision has been taken by a minister but, which has not been considered by the council.
    9. He can appoint a commission to investigate into the conditions of SCs, STs and other backward classes.
    10. He can appoint an inter-state council to promote Centre–state and inter-state cooperation.
    11. He directly administers the union territories through administrators appointed by him.
    12. He can declare any area as scheduled area and has powers with respect to the administration of scheduled areas and tribal areas.

Legislative Powers

  • The President is an integral part of the Parliament of India, and enjoys the following legislative powers.
    1. He can summon or prorogue the Parliament and dissolve the Lok Sabha.
    2. He can also summon a joint sitting of both the Houses of Parliament, which is presided over by the Speaker of the Lok Sabha.
    3. He can address the Parliament at the commencement of the first session after each general election and the first session of each year.
    4. He can send messages to the Houses of Parliament, whether with respect to a bill pending in the Parliament or otherwise.
    5. He can appoint any member of the Lok Sabha to preside over its proceedings when the offices of both the Speaker and the Deputy Speaker fall vacant.
    6. He can also appoint any member of the Rajya Sabha to preside over its proceedings when the offices of both the Chairman and the Deputy Chairman fall vacant.
    7. He nominates 12 members of the Rajya Sabha from amongst persons having special knowledge or practical experience in literature, science, art and social service.
    8. He can nominate two members to the Lok Sabha from the Anglo-Indian Community.
    9. He decides on questions as to disqualifications of members of the Parliament, in consultation with the Election Commission.
    10. His prior recommendation or permission is needed to introduce certain types of bills in the Parliament. For example, a bill involving expenditure from the Consolidated Fund of India, or a bill for the alteration of boundaries of states or creation of a new state.
    11. When a bill is sent to the President after it has been passed by the Parliament, he can:
      1. give his assent to the bill, or
      2. withhold his assent to the bill, or
      3. return the bill (if it is not a money bill) for reconsideration of the Parliament. However, if the bill is passed again by the Parliament, with or without amendments, the President has to give his assent to the bill.
    12. He can promulgate ordinances when the Parliament is not in session. These ordinances must be approved by the Parliament within six weeks from its reassembly. He can also withdraw an ordinance at any time.
    13. He lays the reports of the Comptroller and Auditor General, Union Public Service Commission, Finance Commission, and others, before the Parliament.
    14. He can make regulations for the peace, progress and good government of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu. In the case of Puducherry also, the President can legislate by making regulations but only when the assembly is suspended or dissolved.
  • When a bill passed by a state legislature is reserved by the governor for consideration of the President, the President can:
    1. Give his assent to the bill, or
    2. Withhold his assent to the bill, or
    3. Direct the governor to return the bill (if it is not a money bill) for reconsideration of the state legislature.
  • It should be noted here that it is not obligatory for the President to give his assent even if the bill is again passed by the state legislature and sent again to him for his consideration.

Financial Powers

  • The financial powers and functions of the President are:
    1. Money bills can be introduced in the Parliament only with his prior recommendation.
    2. He causes to be laid before the Parliament the annual financial statement (ie, the Union Budget).
    3. No demand for a grant can be made except on his recommendation.
    4. He can make advances out of the contingency fund of India to meet any unforeseen expenditure.
    5. He constitutes a finance commission after every five years to recommend the distribution of revenues between the Centre and the states.

Judicial Powers

  • The judicial powers and functions of the President are:
    1. He appoints the Chief Justice and the judges of Supreme Court and high courts.
    2. He can seek advice from the Supreme Court on any question of law or fact. However, the advice tendered by the Supreme Court is not binding on the President.
    3. He can grant pardon, reprieve, respite and remission of punishment, or suspend, remit or commute the sentence of any person convicted of any offence:
      1. In all cases where the punishment or sentence is by a court martial;
      2. In all cases where the punishment or sentence is for an offence against a Union law; and
      3. In all cases where the sentence is a sentence of death.

Diplomatic Powers

  • The international treaties and agreements are negotiated and concluded on behalf of the President. However, they are subject to the approval of the Parliament.
  • He represents India in international forums and affairs and sends and receives diplomats like ambassadors, high commissioners, and so on.

Military Powers

  • He is the supreme commander of the defence forces of India. In that capacity, he appoints the chiefs of the Army, the Navy and the Air Force.
  • He can declare war or conclude peace, subject to the approval of the Parliament.

Emergency Powers

  • In addition to the normal powers mentioned above, the Constitution confers extraordinary powers on the President to deal with the following three types of emergencies:
    1. National Emergency (Article 352);
    2. President’s Rule (Article 356 & 365); and
    3. Financial Emergency (Article 360)

VETO POWER OF THE PRESIDENT

  • A bill passed by the Parliament can become an act only if it receives the assent of the President.
  • When such a bill is presented to the President for his assent, he has three alternatives (under Article 111 of the Constitution):
    1. He may give his assent to the bill, or
    2. He may withhold his assent to the bill, or
    3. He may return the bill (if it is not a Money bill) for reconsideration of the Parliament. However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, the President must give his assent to the bill.
  • Thus, the President has the veto power over the bills passed by the Parliament, that is, he can withhold his assent to the bills. The object of conferring this power on the President is two-fold—
    1. To prevent hasty and ill-considered legislation by the Parliament; and
    2. To prevent a legislation which may be unconstitutional.

Absolute Veto

  • It refers to the power of the President to withhold his assent to a bill passed by the Parliament.
  • The bill then ends and does not become an act. Usually, this veto is exercised in the following two cases:
    1. With respect to private members’ bills (ie, bills introduced by any member of Parliament who is not a minister); and
    2. With respect to the government bills when the cabinet resigns (after the passage of the bills but before the assent by the President) and the new cabinet advises the President not to give his assent to such bills.

Suspensive Veto

  • The President exercises this veto when he returns a bill for reconsideration of the Parliament.
  • However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, it is obligatory for the President to give his assent to the bill.
  • This means that the presidential veto is overridden by a re-passage of the bill by the same ordinary majority (and not a higher majority as required in USA). As mentioned earlier, the President does not possess this veto in the case of money bills. The President can either give his assent to a money bill or withhold his assent to a money bill but cannot return it for the reconsideration of the Parliament. Normally, the President gives his assent to money bill as it is introduced in the Parliament with his previous permission.

Pocket Veto

  • In this case, the President neither ratifies nor rejects nor returns the bill, but simply keeps the bill pending for an indefinite period.
  • This power of the President not to take any action (either positive or negative) on the bill is known as the pocket veto.
  • The President can exercise this veto power as the Constitution does not prescribe any time-limit within which he has to take the decision with respect to a bill presented to him for his assent.
  • President has no veto power in respect of a constitutional amendment bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill.

Presidential Veto over State Legislation

  • The President has veto power with respect to state legislation also.
  • A bill passed by a state legislature can become an act only if it receives the assent of the governor or the President (in case the bill is reserved for the consideration of the President).
  • When a bill, passed by a state legislature, is presented to the governor for his assent, he has four alternatives (under Article 200 of the Constitution):
    1. He may give his assent to the bill, or
    2. He may withhold his assent to the bill, or
    3. He may return the bill (if it is not a money bill) for reconsideration of the state legislature, or
    4. He may reserve the bill for the consideration of the President.
  • When a bill is reserved by the governor for the consideration of the President, the President has three alternatives (Under Article 201 of the Constitution):
    1. He may give his assent to the bill, or
    2. He may withhold his assent to the bill, or
    3. He may direct the governor to return the bill (if it is not a money bill) for the reconsideration of the state legislature.
  • If the bill is passed again by the state legislature with or without amendments and presented again to the President for his assent, the President is not bound to give his assent to the bill. This means that the state legislature cannot override the veto power of the President. Further, the Constitution has not prescribed any time limit within which the President has to take decision with regard to a bill reserved by the governor for his consideration. Hence, the President can exercise pocket veto in respect of state legislation also.

ORDINANCE-MAKING POWER OF THE PRESIDENT

  • Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament.
  • These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.
  • It has been vested in him to deal with unforeseen or urgent matters.
  • He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. An ordinance can also be issued when only one House is in session because a law can be passed by both the Houses and not by one House alone.
  • An ordinance made when both the Houses are in session is void. Thus, the power of the President to legislate by ordinance is not a parallel power of legislation.
  • Every ordinance issued by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles.
  • If the ordinance is approved by both the Houses, it becomes an act. If Parliament takes no action at all, the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament. The ordinance may also cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament pass resolutions disapproving it.
  • The maximum life of an ordinance can be six months and six weeks, in case of non-approval by the Parliament (six months being the maximum gap between the two sessions of Parliament).
  • The President can also withdraw an ordinance at any time. However, his power of ordinance-making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.

PARDONING POWER OF THE PRESIDENT

  • Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:
    1. Punishment or sentence is for an offence against a Union Law;
    2. Punishment or sentence is by a court martial (military court); and
    3. Sentence is a sentence of death.
  • The pardoning power of the President is independent of the Judiciary; it is an executive power. But, the President while exercising this power, does not sit as a court of appeal.
  • The object of conferring this power on the President is two-fold:
    1. to keep the door open for correcting any judicial errors in the operation of law; and,
    2. to afford relief from a sentence, which the President regards as unduly harsh.
  • The pardoning power of the President includes the following:
    1. Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
    2. Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
    3. Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
    4. Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
    5. Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

CONSTITUTIONAL POSITION OF THE PRESIDENT

  • The Constitution of India has provided for a parliamentary form of government. Consequently, the President has been made only a nominal executive; the real executive being the council of ministers headed by the prime minister.
  • In other words, the President has to exercise his powers and functions with the aid and advise of the council of ministers headed by the prime minister.
  • The executive power of the Union shall be vested in President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (Article 53).
  • There shall be a council of ministers with the Prime Minister at the head to aid and advise the President who ‘shall’, in the exercise of his functions, act in accordance with such advice (Article 74).
  • The council of ministers shall be collectively responsible to the Lok Sabha (Article 75).
  • The 42nd Constitutional Amendment Act of 1976 (enacted by the Indira Gandhi Government) made the President bound by the advice of the council of ministers headed by the prime minister.
  • The 44th Constitutional Amendment Act of 1978 (enacted by the Janata Party Government headed by Morarji Desai) authorised the President to require the council of ministers to reconsider such advice either generally or otherwise.
  • However, he ‘shall’ act in accordance with the advice tendered after such reconsideration.
  • In other words, the President may return a matter once for reconsideration of his ministers, but the reconsidered advice shall be binding.
  • Though the President has no constitutional discretion, he has some situational discretion. In other words, the President can act on his discretion (that is, without the advice of the ministers) under the following situations:
    1. Appointment of Prime Minister when no party has a clear majority in the Lok Sabha or when the Prime Minister in office dies suddenly and there is no obvious successor.
    2. Dismissal of the council of ministers when it cannot prove the confidence of the Lok Sabha.
    3. Dissolution of the Lok Sabha if the council of ministers has lost its majority.

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