President of India

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• Articles 52 to 73 in Part V
• Part V deals with the Union Executives.
• The Union executive consists of
  • President
  • Vice-President
  • Prime Minister
  • Council of ministers
  • Attorney general of India
• The President of India is the head of the Indian State.
• He is the first citizen of India.
• He acts as the symbol of unity, integrity and solidarity of the nation.
• But the President of India is only a nominal executive.

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Election of the President of India

• Article 54
• The President is elected by members of electoral college consisting of:
  • Elected members of both the Houses of Parliament
  • Elected members of the legislative assemblies of the states
  • Elected members of the legislative assemblies of the Union Territories
• Value of the vote of an MLA

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• Value of the vote of an MP

• Value of vote of MLA of UP is highest & value of vote of MLA of Sikkim is lowest.
• Value of the vote of MP is more than value of MLA.
• Election is held in accordance with
  • System of proportional representation
  • Means of the single transferable vote
  • Secret ballot
• Each member of the electoral college is given only one ballot paper.
• A candidate, must secure a fixed quota of votes to became the President of India.
• Electoral quota

• Single transferable vote process continues till a candidate secures the required quota.
• Decision of Supreme Court is final in the case of any doubts and disputes regarding election of the President.
• The indirect election of the President is in harmony with the parliamentary system of govt.

Qualifications for Election as President

• President should be a citizen of India.
• He should have completed 35 years of age.
• He should be qualified for election as a member of the Lok Sabha.
• President should not hold any office of profit under the Union or state govt. or any local or public authority.
• The nomination of a candidate must be subscribed by min 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.
• Security deposit forfeited in case the candidate get less than 1/6th of the votes polled.

Oath or Affirmation by the President

• to faithfully execute the office
• to preserve, protect and defend the Constitution and the law
• to devote himself to the service and well-being of the people of India
• The oath is administered by the CJI or the seniormost judge of the Supreme Court available, in his absence.

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Conditions of President’s Office

• President should not be a member of either House of Parliament or state legislature.
• In the case of a member, must vacated his seat in that House on the date on which he enters upon his office as President.
• President should not hold any other office of profit.
• He is entitled, without payment of rent, to the use of his official residence (Rastrapathi Bhavan).
• President is entitled to such emoluments, allowances and privileges as may be determined by Parliament.
• His emoluments and allowances cannot be diminished during his term of office.
• Privileges and immunities to the President
  • 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.
  • Civil proceedings can be instituted against him during his term of office in respect of his personal acts after giving 2 months’ notice.

Term of President’s Office

• The President holds office for a term of 5 years from the date on which he enters upon his office.
• He can resign at any time by addressing the resignation letter to the Vice-President.
• President can also be removed from the office by the process of impeachment.
• President is also eligible for re-election to that office.
• He may be elected for any number of terms.
• In USA, a person cannot be elected as President more than twice.

Impeachment of President

• Article 61
• Impeachment of President can be initiated for ‘violation of the Constitution’.
• Constitution does not define the meaning of ‘violation of the Constitution’.
• The impeachment charges can be initiated by either House of Parliament.
• These charges should be signed by ¹/₄th members of that House.
• 14 days’ notice should be given to the President.
• Impeachment resolution must passed by a majority of 2/3rd of the total membership of that House.
• Then 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 2/3rd of the total membership, then the President stands removed from his office.
• Impeachment of President
  • It is a quasi-judicial procedure.
  • Nominated members of either House of Parliament can participate.
  • Elected members of the legislative assemblies of states and the UTs do not participate.
  • No President has so far been impeached.

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Vacancy in the President’s Office

• A vacancy can occur in following ways:
  • On the expiry of his tenure of 5 years.
  • By his resignation.
  • On his removal by the process of impeachment.
  • By his death.
  • when he becomes disqualified
    • For holding office of profit.
    • His election is declared void by SC.
• An election to fill the vacancy must be held before the expiration of the term.
• The outgoing President continues to hold office in case of any delay in conducting the election.
• He continues beyond his term of 5 years until his successor assumes charge.
• If case of resignation, removal, death or disqualification
  • Election to fill the vacancy should be held within six months.
  • Newly-elected President remains in office for a full term of 5 years.
  • When a vacancy occurs Vice-President acts as the President.
• If sitting President is unable to discharge his functions
  • Vice-President acts as the President.
  • In case the office of Vice-President is vacant, the CJI acts as the President.
  • If the office CJI is also vacant, the seniormost judge of the SC available acts as the President.

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Powers & Functions of the President

• Executive powers
• Legislative powers
• Financial powers
• Judicial powers
• Diplomatic powers
• Military powers
• Emergency powers

Executive Powers

• All executive actions of the Govt. of India are formally taken in the name of President.
• President can seek any information relating to the administration of the Union
• He can ask for proposals for legislation from the prime minister.
• President directly administers the UTs through administrators appointed by him.
• He can declare any area as scheduled area.
• He has powers regarding administration of scheduled areas and tribal areas.

Pardoning Power

• Article 72
• President may grant pardons to persons who have been tried and convicted of any offence .
  • Punishment or sentence is for an offence against a Union Law
  • Punishment or sentence is by a court martial (military court)
  • Sentence is a sentence of death
• Pardoning power of the President is independent of the Judiciary.
• It is an executive power.
• President while exercising this power, does not sit as a court of appeal.
• Types of pardoning power
  • Pardon – complete release the convict from all sentences.
  • Commutation – giving a lighter form of punishment by changing its character.
  • Remission – reducing the period of sentence without changing its character.
  • Respite – awarding a lesser sentence due to some special facts
    • such as the physical disability of a convict
    • pregnancy of a woman offender
  • Reprieve – stay of the execution of a sentence for a temporary period
• Purpose of reprieve is to enable the convict to have time to seek pardon or commutation from the President.
• The petitioner for mercy has no right to an oral hearing by the President.
• President can examine the evidence afresh and take a view different from the court.
• The power is to be exercised by the President on the advice of the union cabinet.
• President is not bound to give reasons for his order.
• President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
• Supreme Court cannot give guideline for exercising of power by the President.
• This power of President is not subject to judicial review.
• Judicial review can be done where the presidential decision is arbitrary, irrational, mala fide or discriminatory.
• Petitioner cannot file another petition, if one petition for mercy has been rejected by the President.

Powers to Appoint

• Every appointment of union govt. is made in the name of president.
  • Prime minister of India
  • Council of Ministers
  • Attorney General of India
  • Comptroller & Auditor general of India
  • Judges of Supreme Court & High court
  • Governor of the states & administrators of UTs
  • Finance commissioner & its members
  • Members of UPSC & JPSCs
  • Chief election commissioner & its members
  • Chairman & members of SC & ST of commissions
  • Inter-state council

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Legislative Powers

• President can summon or prorogue the Parliament.
• He can dissolve the Lok Sabha.
• He can also summon a joint sitting of both the Houses.
• President address the Parliament at the commencement of the 1st session after each general election and the first session of each year.
• He can send messages to the Houses of Parliament, regarding any pending bill.
• 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.
• President  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.
• He nominates 12 members of the Rajya Sabha and 2 members to the Lok Sabha from the Anglo-Indian Community.
• He decides on questions as to disqualifications of members of the Parliament, in consultation with the Election Commission.
• His prior recommendation or permission is needed to introduce certain types of bills in the Parliament.

Ordinance Making Power

• Article 123
• Those are in the nature of temporary laws.
• It is the most important legislative power of the President.
• It empowers the President to promulgate ordinances when
  • Both the Houses of Parliament are not in session
  • 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.
• In Cooper case, (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide.
• An ordinance can be issued only on those subjects on which the Parliament can make laws.
• Ordinance is subject to the same constitutional limitation as an act of Parliament.
• Ordinance 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, ordinance ceases to operate after 6 weeks from the reassembly of Parliament.
• If both the Houses of Parliament disapproving ordinance, it ceases to operate.
• The President can also withdraw an ordinance at any time.
• Power of ordinance-making is not a discretionary power.
• President can promulgate or withdraw an ordinance only on the advice of the council of ministers.
• An ordinance can be retrospective, and may come into force from a back date.
• It may modify or repeal any act of Parliament or another ordinance.
• It can alter or amend a tax law also.
• Ordinance cannot be issued to amend the Constitution.
• D C Wadhwa case (1987) Supreme Court held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.

Discretionary Power of President

• President has no constitutional discretion power.
• He has some situational discretion power.
• Discretion power of President mean that he can act without the advice of the council of ministers.
• President can act on his discretion
  • Appointment of Prime Minister when no party has a clear majority in the Lok Sabha
  • Prime Minister dies suddenly without any obvious successor
  • Dismissal of the council of ministers when it cannot prove the confidence of the Lok Sabha.
  • Dissolution of the Lok Sabha if the council of ministers has lost its majority

Reports laid before Parliament by the President

• Auditor General Report relating to accounts of govt. of India
• Recommendation made by Finance commission
• Report of UPSC, explaining the reasons where any advice of the commission has not been accepted.
• Report of National commission for SCs & STs
• Report of special officers for linguistic minorities

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Financial Powers

• Money bills can be introduced in Parliament only with prior recommendation of President.
• He causes to be laid before the Parliament the annual financial statement.
• No demand for a grant can be made except on his recommendation.
• President can make advances out of the contingency fund of India to meet any unforeseen expenditure.
• He constitutes a finance commission after every 5 years to recommend the distribution of revenues between the Centre and the states.

Judicial Powers

• President appoints the Chief Justice and the judges of Supreme Court and High courts.
• He can seek advice from the Supreme Court on any question of law or fact.
• The advice tendered by the Supreme Court is not binding on the President.

Diplomatic Powers

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

Military Powers

• President 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.

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Emergency Powers

• President can declare three types of emergencies
  • National Emergency (Article 352)
  • President’s Rule (Article 356 & 365)
  • Financial Emergency (Article 360)

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Veto Power of the President of India

• When a bill is sent to the President after it has been passed by the Parliament, he can:
  • give his assent to the bill, or
  • withhold his assent to the bill, or
  • return the bill (if not a money bill) for reconsideration of the Parliament.
• If the bill is passed again by the Parliament, with or without amendments, the President has to give his assent to the bill.
• The object of conferring this power on the President is two-fold
  • to prevent hasty and ill-considered legislation by the Parliament.
  • to prevent a legislation which may be unconstitutional.
• President has no veto power in respect of a constitutional amendment bill.
• 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill
• American President qualified veto power, which is not available to Indian President.

Absolute Veto

• It refers to the power of the President to withhold his assent to a bill passed by the Parliament.
• This veto is exercised in the following two cases:
  • With respect to private members’ bills
  • With respect to the govt. bills when the cabinet resigns and the new cabinet advises the President not to give his assent to such bills.
• Absolute veto power used
  • President Dr. Rajendra Prasad – 1954
  • President R Venkataraman – 1991

Suspensive Veto

• President exercises this veto when he returns a bill to Parliament for reconsideration.
• If the bill is passed again by the Parliament, with or without amendments, the President has to give his assent to the bill.
• So the presidential veto is overridden by a re-passage of the bill by the same ordinary majority.
• In USA it need a higher majority.
• 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.

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Pocket Veto

• President simply keeps the bill pending for an indefinite period.
• Constitution does not prescribe any time-limit to President to take decision with respect to a bill.
• In USA, President has to return the bill for reconsideration within 10 days.
• So, the pocket of the Indian President is bigger than that of the American President.
• In 1986, President Zail Singh exercised the pocket veto with respect to the Indian Post Office (Amendment) Bill.

Presidential Veto over State Legislation

• Governor can reserved a state legislature bill for consideration of the President.
• The President can
  • Give his assent to the bill, or
  • Withhold his assent to the bill, or
  • Direct the governor to return the bill for reconsideration of the state legislature.
• It is not obligatory for the President to give his assent even if the bill is again passed by the state legislature.
• If the case of a money bill, President can’t return the bill.