President of India (Union Executive- Part V (52-151))

The Union executive consists of the President of India, the Vice President, and the Council of Ministers, with the Prime Minister as the head to aid and advise the President.

President of India

The President is the Head of the State, the first citizen of India. The Indian President is the head of the state and he is also called the first citizen of India. He is a part of Union Executive, provisions of which are dealt with in Articles 52-78 including articles related to the President (Articles 52-62). Under these articles, information on how a President is elected, his powers and functions, and also his impeachment process is given.

• India follows a Parliamentary type of Government in which the President is the Constitutional head of the state. He is equivalent to the king of England.
• Office of the President came into existence immediately after the constitution was adopted on 26 November 1949
• He is a part of Union Executive, provisions of which are dealt with in Art. 52-78, Part V including Art. related to President (Art. 52-62.)
• President is the Executive head of India & all the executive powers of the union shall be vested in him.
• President is the Supreme Commander of the army forces.
• He is the first citizen of India and acts as the symbol of unity, integrity, and solidarity of the nation. He occupies the first position under warrant of precedence.

Article 52 – There shall be a President of India.

• Implies President of India is a must in the constitutional scheme and structure of India.
• There is no exception to the rule given by Art. 52. Office of the President cannot even for a short while remain vacant.

The Indian Constitution envisages a parliamentary form of government. Accordingly, the President has been made only a nominal executive

Article 53 – Executive Power of the Union shall be vested in President;

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 following this Constitution.

Power exercised directly or through offices subordinate.

Article 54 – Election of President

• The Constitution states that the President of India is to be elected indirectly by an electoral college under the system of proportional representation by means of a single transferable vote system and secret ballot.
• Constitution specifies two principles for ensuring uniformity and parity in the value of votes of MPs and MLAs.

Value of a vote of MLA of state-

• For securing uniformity in the scale of representation of all States, the Constitution provides that the value of the vote of an MLA of each state is to be in proportion to the population of that state.

Value of vote of an MP-

• To ensure parity between the States and the Union, it has been laid down that the total value of votes of all the elected Members of Parliament (MPs) shall be equal to the total value of votes of all the MLAs from all states.

Article 55 – Manner of Election of President

Elected members of the two Houses of Parliament,
Elected members of the Legislative Assemblies of the States,
Elected members of the Legislative Assembly of the National Capital Territory (NCT) of Delhi the UT of Pondicherry.

• Nominated Members of Lok Sabha (Anglo Indian – 2 members) and Rajya Sabha (12 members)
• Nominated Members of State Legislative Assemblies (Anglo Indian-1)
• Members of Legislative Councils (Both elected and nominated) in bicameral legislatures
• Nominated Members of UTs of Delhi and Puducherry

The quota of Votes in the President

• A candidate, in order to be declared elected to the office of President, must secure a fixed quota of votes.
• The quota of votes can be expressed as:
• Each member of the electoral college is given only one ballot paper. During casting his vote, the voter is required to indicate his preferences by marking 1, 2, 3, 4, etc. against the names of candidates.

Article 56 – Term of office of President

• President shall hold the office for terms of 5 years from the date he enters upon his office.
• Even after the expiry of his terms, he shall continue in office until his successor enters his office
• President may resign his office before the expiry of his normal terms of 5 years by writing to the vice president
• He may be elected for any number of terms, unlike in the USA.

In the USA, the President cannot be elected to office for more than two terms

Article 57 – Eligibility for Re-Election

Term of Office: 5 Years
Resignation addressed to Vice-President; Vice-President to communicate to the speaker.

Article 58 – Qualification for election as President

1. Citizen of India.
2. Completed 35 years of age.
3. Qualified for election to Lok Sabha.
4. Not to hold the office of profile.
5. Office of President; V-P; Governor; Minister of states or union- Exempted
6. from Office of Profit.

Article 59 – Conditions of the Office of the President

1. Not to be MP or MLA.
2. No office of Profit.
3. Entitled to official Residence emoluments and allowance.
4. Emoluments allowance no to be diminished.

Article 60 – Oath administered by the CJI

In his oath, the President swears:

• 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 to the President is administered by the Chief Justice of India and in his absence, by the senior-most judge of the SUPREME COURT.

Article 61 – Impeachment of President

• 61 – procedure for impeachment of the president
• The power of impeachment of the president lies in Parliament only for “violation of the constitution”
• Impeachment of the President is a quasi-judicial procedure in the Parliament

The procedure of impeachment:

• During impeachment proceedings, President has the right to appear & to be represented at such investigation to defend himself.
• Other than impeachment, no other penalty can be imposed on the president for violation of the constitution
• No President has so far been impeached.

Article 62 – Time of holding election to fill the vacancy in the office of president and the term of office or person elected to fill the casual vacancy.

• In case of completion of the President’s term for five years in the office
• In case of resignation to the Vice-president of India
• If Lok Sabha/Rajya Sabha initiates an impeachment charge and they stand valid, he is removed
• In case he dies in the office
• Invalidation of election by Supreme Court
• Except in case of expiry of the term – V.P. will act as the president; Election to be held as soon as possible; within not more than 6 Months.

NOTE – If the election of a person as President is declared void by the SC, acts done by him before the date of such declaration of the Supreme Court are not invalidated and continue to remain in force.

Power and Function of President

 1. Executive Powers

• All executive powers of the Union are vested in him.
• These powers are exercised by him either directly or through subordinate officers in accordance with the Constitution.
• The Supreme Command of the Defence Force is vested in the President and exercises it in accordance with the law.
• President appoints the PM and other ministers, and they hold office at his pleasure.
• He appoints the Attorney General of India, the CAG of India, the Chief Election Commissioner and other Election Commissioners, the Chairman and Members of the UPSC, the Governors of the states, the Chairman and the members of the Finance Commissions, etc.
• The President can appoint a commission to investigate the conditions of SCs, STs, and OBCs.
• The President also receives the credentials of Ambassadors and High Commissioners from other countries.
• The President is the Commander in Chief of the Indian Armed Forces.
• The President of India can grant a pardon to or reduce the sentence of a convicted person for one time, particularly in cases involving the punishment of death.
• President can seek any information relating to the administration of affairs of the Union, and proposals for legislation from the PM.
• President has the power to declare any area as a scheduled area and has powers with respect to the administration of scheduled areas and tribal areas.
• President directly administers the UTs through administrators appointed by him.
• President can appoint an inter-state council (Art.263) to promote Centre-state and inter-state cooperation.
• President makes rules for the more convenient transactions of business of the Union government, and for the allocation of the said business among the ministers.

2. Legislative Powers

President is an integral and indivisible part of the Parliamentary system of India. He possesses:

• The President can summon or end a session of the Parliament and dissolve the Lok Sabha.
• He can address the Parliament at the commencement of the first session after the general election and the first session of each year.
• He can summon a joint sitting (Art. 108) of both houses of Parliament which is presided over by the Speaker of the Lok Sabha.
• President lays down reports of UPSC, CAG, Election Commission, Finance Commission, CVC, etc. before the Parliament.
• President decides upon the question of disqualification of MPs (In anti-defection case – Presiding officer of the house)
• President makes rules and regulations for peace and progress in UTs (Art.240) – Andaman & Nicobar Island, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, Pondicherry.
• President nominates 12 Members to the Rajya Sabha (literature, science, art, and social service). President nominates 2 members to the Lok Sabha (Anglo-Indian Community)
• President’s previous recommendation or permission is needed for introducing bills in the Parliament that involve expenditure from the Consolidated Fund of India, alternation of boundaries of states, or creation of a new state
• When a bill is sent to the Parliament after it has been passed by the Parliament, the President can give his assent to the bill or withhold his assent to the bill or return the bill (if it’s not a Money Bill or a Constitutional Amendment Bill) for reconsideration of the Parliament.
• When a bill is passed by a State Legislature is reserved by the Governor for consideration by the President, the President can give his assent to the bill, withhold his assent to the bill, or direct the GOVERNOR to return the bill (if it’s not a Money bill) for reconsideration of the State Legislature.
• President can promulgate ordinances (Art.123) when both Houses of Parliament are not in session. The ordinance is effective for a maximum period of 6 months and 6 weeks.

3. Financial Powers

• A money bill can be introduced in Parliament only with the President‘s recommendation.
• The President lays the Annual Financial Statements. the Union budget before the Parliament – Art. 112
• President can make advances out of the Contingency Fund of India to meet unforeseen expenses.
• The President constitutes a FINANCE COMMISSION (Article 280) after every five years to recommend the distribution of taxes between the center and the States.
• No demand for a grant can be made except on his recommendation.

4. Judicial Powers

• President appoints the Chief Justice and the judges of the Supreme Court and high courts.
• 143 – President can seek advice from the Supreme Court on any question of law or fact therein. In this case, advice tendered by the Supreme Court is not binding on the President.
• 72 – He can grant pardon, reprieve, respite, and remission of punishment, or suspend, remit, or commute the sentence of any person convicted of any offense in all cases:
• where the punishment or sentence is by a court martial;
• where the punishment or sentence is for an offense against a Union law;
• where the sentence is a sentence of death.

5. Diplomatic Powers

• International treaties and agreements are signed on behalf of the President, subject to the approval of the Parliament.
• The President represents India in International forums and also sends and receives diplomats such as Ambassadors, High Commissioners.

6. Military Powers

• The President is the supreme commander of the defense forces of India.
• The President can declare war and conclude peace, subject to Parliament’s approval.
• The President appoints the chiefs of the Army, Navy, and Air Force.

7. Emergency Powers

In a federal structure, the hold of the Union on the State is not so tight and hence the Constitution framers did provide for the exigencies which may require a tightened grip of the Union on the State.

1. NATIONAL EMERGENCY (Art.352) – President can declare a national emergency only on a written request by the Cabinet Ministers headed by the PM and the proclamation must be approved by the Parliament within one month.
2. STATE EMERGENCY (Art.356) – President’s Rule connotes the suspension of a state government and the imposition of direct rule of the Centre. During state emergencies, the Governor administers the state in the name of the President. A proclamation must be approved by both Houses of Parliament within two months from the date of its issue through a simple majority. Proclamation of the President’s Rule can be revoked by the President at any time by a subsequent proclamation.
3. FINANCIAL EMERGENCY (Art.360) – Such proclamation by President must be approved by the Parliament within two months. Financial Emergency has not been declared so far.

8. Veto Powers of The President

A bill passed by the Parliament can become an act only if it is assented to by the President. President possess three options for his assent (Art. 111) –

1. President may give his assent to the bill, or
2. President may withhold his assent to the bill, or
3. President may return the bill (except the Money bill) for reconsideration by the Parliament.

Absolute Veto

• Power of the President to withhold his assent to a bill passed in Parliament. The bill then ends & does not become an act.
• In 1954, President Rajendra Prasad withheld his assent to the PEPSU appropriation bill
• In 1991, President R Venkataraman withheld his assent to the Salary, Allowances, and Pension of Members of Parliament (Amendment) Bill.
• Usually, this veto is exercised in the following two cases:
  • With respect to private member’s bills
  • 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 to restrain giving his assent to such bills.

Suspensive Veto

• power of the President to return a bill passed in Parliament for reconsideration (the provision was availed through the 44^th Amendment act 1978)
• In case, the bill is passed again by the Parliament with or without amendments and presented again to the President, it is obligatory for the President to give his assent to the bill.
• This veto power is not applicable to the money Bill (Art. 110)
• The Presidential veto could be overridden by a re-passage of the bill by the same ordinary majority (not a higher majority as required in the USA).

Pocket Veto

• No time frame for President to give his assent or refuse i.e. pocket a bill infinite times.
• In this veto, the President neither ratifies nor rejects nor returns the bill.
• A pocket veto is not applicable to Constitutional Amendment Bill – the 24th Amendment (1971), made it obligatory for the President to give his assent to Constitutional Amendment Bill.

Note:- President Zail Singh in 1986, exercised the pocket veto with respect to the Indian Post Office (Amendment) Bill. The bill seeks to impose restrictions on the freedom of the press. In 1989, the next President R Venkataraman sent the bill for reconsideration of CoM, but the new government decided to drop the bill.
44th amendment (1978) – If the bill is passed by the Parliament again after reconsideration (with or without amendments) and presented to the President, the President must give his assent to the bill.
The USA President has to return the bill for reconsideration within 10 days. Hence, It is often remarked that the pocket of the Indian President is bigger than that of the American President.
QUALIFIED VETO – It is a veto that can be overridden by the legislature with a higher majority. Indian President has not entitled to a qualified veto. However, it is possessed by the American President.

9. Discretionary Power of the President

Under specific and situational circumstances, the president has to act as per his own wisdom, sense of justice & discretion:

• The President is expected to exercise his discretion in such circumstances as much of the Lok Sabha’s life may still be intact and it is worthwhile to explore the possibility of forming an alternative Government.
• In appointing the PM from among the contenders when no single party attains majority after elections to the Lok Sabha.
• CoM after resigning, advises the President to dissolve, the Lok Sabha and hold fresh elections.
• 85 – President can summon each House of Parliament to meet, to ensure that six months shall not intervene between its last sitting in a session and the date appointed for its sitting in the next session.
• While exercising a pocket veto.
• Can return the advice of the CoM once for its reconsideration.
• Can return the Bill passed by the Parliament once for its reconsideration (Suspensive Veto).

10. Ordinance Power of President

• 123 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
• The ordinance-making power is envisaged in the constitution to deal with unforeseen or urgent matters.
• Introduced in 1861 and till 1947 about 400 ordinances were promulgated.
• Nehru & Ambedkar who were generally opposed to it in the constituent assembly labeled it as a “necessary evil”.
• Ordinance-making powers are a typical violation of the separation of powers. it is not available with the British Monarch or US president.
• The President’s power of ordinance-making is not discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the CoM headed by the PM.
• The power of the President to legislate by ordinance is not a parallel power of legislation.
• An ordinance can be retrospective in effect.
• It may modify or repeal any act of Parliament or another ordinance. It can alter or amend a tax law as well.
• Ordinance-making power is not applicable to amending the Constitution.

11. Judicial Safegaurd

• RC Cooper vs. Union of India (1970) – SC held that the President’s decision to promulgate the ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
• DC Wadhwa vs. the State of Bihar (1987) – It was argued that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
• Krishna Kumar Singh vs. the State of Bihar (2017) – SC held that the authority to issue ordinances is not an absolute power, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.

12. Power of Pardon

• Art. 72 – empowers the President to grant pardons to persons who have been tried and convicted of any offense in all cases where the:
  
  • Punishment or sentence for an offense against a Union Law;
  • Punishment or sentence by a court martial (military court);
  • The sentence is a sentence of death.

• The pardoning power of the President is independent of the Judiciary
• This power is an executive power.
• The President does not sit as a court of appeal while exercising this power

1. PARDON – It removes both the sentence and conviction and therefore completely absolves the convict from all sentences, punishments, and disqualifications.
2. COMMUTATION – It connotes the substitution of one form of punishment for a lighter form. For E.g. a death sentence could also be commuted to rigorous imprisonment.
3. REMISSION – It denotes reducing the quantum of a sentence without changing its character. E.g. a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
4. RESPITE – It implies 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 lady offender.
5. REPRIEVE – It denotes a stay of the execution of a sentence (especially that of death) for a temporary period. It’s aimed to enable the convict to have time to seek pardon or commutation from the President.

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