The President of India

Union Executive: The President

Union Executive 

• Part V of the Constitution deals with the Union
• Chapter 1 of Part V deals with Executive (i.e., Union Executive)
• Article - 52 to 78

Union Executive consists of -

1. The President
2. The Vice-President
3. Council of Minister headed by Prime Minister
4. Attorney General of India

The President

• Executive head of the State
• Highest Constitutionary functionary
• First Citizen of India
• Supreme Commander of Armed forces

Article 53 - It confers the executive powers of the Union in the President and he shall discharge these powers either directly or through officers sub-ordinate to him.

All the decisions of the Union Executive are taken in his name.

• Ram Sahib Ram Jawaya Kapur and Ors. vs State of Punjab Case, 1955

What is Executive power?

Supreme Court in Ramjawaya vs State of Punjab Case, 1955 defines the Executive power as the residue of the government's function that remains after legislative and judicial functions are taken away.

Executive powers includes implementing the law, determination of government policies, initiation of legislation (law making process), maintenance of law and order, giving directions to country's foreign policies and carrying out general administration of the state.

Article 74 - In original form it is read about the Council of Minister headed by the Prime Minister to aid and advise the President.

However, Article 74 did not explicitly clarified whether the President was bound by the advise of the Council of Ministers or not.

42nd Constitutional Amendment Act 1976 amended Article 74 and in amended form it made the President bound by the advise of the Council of Minister.

44th Constitutional Amendment Act 1978 further amended Article 74 and added a provision that the President may ask the Council of Minister to reconsider the advice. However, the President shall act in accordance to the advice given to him after such reconsideration (sent with or without changes).

Qualification of the President 

1. Citizen of India
2. Age not less than 35 years of age
3. Must be qualified enough to be elected to Lok Sabha
4. Should not be holding any office of profit under the State

However, for the election to the Presidential office, the offices of President, Vice-President, Governor of the State, Ministers of Union or State, MPs, MLAs, MLCs are not regarded as office of profit.

Oath and Affirmation of the President 

• Article - 60
• Administered by Chief Justice of India (CJI)

Note - The oath of the President is not mentioned in 3rd Schedule of the Constitution. Neither he takes the oath to uphold the sovereignty and integrity of the nation nor he takes the oath of secrecy.

Salary - The Salary of the President is mentioned in the 2nd Schedule of the Constitution.

Term of office - 5 years

Unlike US President, he can be re-elected for any number of time.

Vacancy in the President's office - The Vacancy in the President office happens in case of -

1. Death of the President
2. Resignation from the President
3. Impeachment of the President
4. He is absent due to some personal reason or any disease
5. Expiry of the term of 5 years.

Note - The President gives his resignation letter to the Vice-President.

If there is a vacancy in the President office due to death, resignation or impeachment, then the next presidential election must be held within 6 months.

When there is a vacancy in the office of the President because the President is unable to discharge his function, i.e., absent from the office, then the Vice-President of India acts as the President by taking the oath conducted to him by the CJI.

        In this case, Vice-President can act as the President for any period of time until the President came back to his office. Till that time the Deputy Chairman of the Rajya Sabha acts as the Chairman (not as Vice-President).

Note - 

• If the President office is vacant → Filled by the Vice-President, which make the office of Vice-President vacant.
• Vice-President works on dual front -
• As the Vice-President of India
• As the Chairman of Rajya Sabha
• In case of vacancy in Vice-President office → No one will act as the Vice-President but the Deputy Chairman will act as the Chairman of the House till the time Vice-Chairman resumes his office.

Election of the President 

The President of India is elected by MPs and MLAs (elected) by a system of proportional representation by single transferrable vote.

Note - The election of President, Vice-President, MPs of Lok Sabha and MLAs are done in Secret Ballot where as the election of MPs of Rajya Sabha is done in Open Ballot.

Article 54 - President is elected indirectly by an electoral college consisting of elected members of both the houses of the Parliament and elected members of state legislative assemblies.

After 70th Constitutional Amendment Act 1992, the expression state started to include UTs of Delhi and Puducherry.

State on one hand and Parliament on other hand are equally represented in the electoral college, which means that the President comes to represent Union/nation as well as the States at the federal level.

Note - Delhi Legislative Assembly does not have any nominated members.

The President is elected by a system of proportional representation through single transferrable vote system.

Any party can't issue whip in President's election, i.e., members are free to vote any candidate.

Proportional representation system - 

In this system, States are represented in the electoral college of the President election in accordance with the population of the States as per 1971 census.

President is getting elected by the Parliament that is he represents nation or the people of the India as whole and by getting elected by the Sates means that he represents States at the federal level.

Vote value of 1 vote of MLA = (Population of the State/Total no. of elected MLAs of the State) X 1/1000

Note - Vote value of each MLA of a state is equal but it may be different from that of MLA of other State because of population difference as well as number of MLAs in that State (State with more population may have more Vote value).

Vote value of 1 vote of MP - Total vote value of all the elected MLAs/Total number of elected MPs of both the houses (i.e., 543+233)

Note - The vote value of all MPs (Lok Sabha and Rajya Sabha) is same across the country.

Single transferrable vote system/Preferenceable voting system -

Under this system, the electors has the right to indicate more than one preference of candidate and he can integrate as many preference as there are candidates in the contest.

In the 1st round of the count only 1st preference votes are considered or counted and if any candidate obtains more than 50% of the 1st preference valid votes then he wins.

And if no body wins in the 1st round then the candidate with the least number of 1st preference vote is eliminated and 2nd preference in those votes shall be distributed in the favour of respective remaining candidates and then again a majority of 50% is checked. 

The process continued till the candidates gets the required majority and wins.

The disputes related to the President's election (and Vice-President's election) shall be heard by Supreme Court whose decision in this regard shall be final and binding (Article 71).

If in case the election of the President is declared void on any ground, then the decision taken on his name or by him prior to that shall not become invalid on this ground.

The nomination of the Presidential candidate shall be proposed by not less than 50 electors and shall be seconded by another not less than 50 electors.

Nomination form can be submitted in the Secretariat of any House of the Parliament, i.e., nomination form can be submitted either in Lok Sabha Secretariat or in Rajya Sabha Secretariat.

Secretary General of Lok Sabha and Secretary General of Rajya Sabha are the ex-officio returning officers for the presidential and vice-presidential election, i.e., they takes turn to preside over the presidential and vice-presidential election.

Impeachment of the President 

• The method of impeachment of the President is taken from USA.
• The impeachment of the President is a legislative action (as it involves the passage of impeachment resolution) while the removal of Governor, CJI, Judges of Supreme Court and High Court is an executive action (since, they are removed by the executive head, i.e., President).

Under Article 61 of the Constitution, the President is impeached by the Parliament on the grounds of Violation of the Constitution. However, the Constitution does not describe what action of the President amounts to the violation of the constitution. It is thus the political determination made by the Parliament.

The motion seeking the impeachment of the President shall be introduced in the form of a resolution in either of the houses of the Parliament.

In order to introduce the resolution, it must be supported by not less than 1/4th of the total membership of the house. Also the resolution can be taken up in the house for passage only after the expiry of 14 days notice served to the President.

The motion is passed by a Special Majority of not less than 2/3rd of the total membership of the house. After the motion is passed in the first house, it is then transmitted to the other house which acts as investigating house.

Note - In case of removal of Judges of Supreme Court and High Courts, the first house shall act as the Investigating house.

The second house investigates the charges or may cause the changes to be investigated. The President has the right to defend himself before the second house. Thus, the function performed by the second house is Quasi-judicial in nature.

After the investigation, if the second house also passes the resolution with the majority of not less than 2/3rd of the total membership of the house, then the president shall be impeached.

All the decisions taken by the President or in his name shall remain valid even after his impeachment.

Note - Judicial review of the impeachment of the President is permissible.

Ordinance making power of the President (Article 123) 

Under Article 123, ordinances enable the smooth functioning of the government of rapidly changing environment. It is a legislative power, and co-extensive and coterminous with the legislative power of the Parliament, i.e., ordinance has same force as an act of the Parliament.

Ordinance is issued by the President when one or both the houses are not in session but the issue requires urgent legislation.

Ordinance can be used to issue a new legislation or to amend or repeal already issued legislation or ordinance.

There are many safeguards to prevent the possible misuse of ordinances like ordinances are subjected to judicial review, also ordinances need to to approved by the houses of the Parliament within 6 weeks of re-assembly of the houses.

Governor can also issue ordinances in the State as per the provisions of Article 213.

The ordinance making power of the President or the Governor is in practice the power of the Union Council of Ministers or State Council of Ministers respectively.

• Dr. D.C. Wadhwa vs State of Bihar Case, 1986 

The State of Bihar adopted a practice of re-promulgating the ordinances on massive scale from time to time without their provisions being enacted into acts of the legislature.

In this case, the executive has almost taken over the role of legislature in making laws not for a limited period but for years. This is seen as the misuse of ordinance making power and eventually endangered the separation of powers, which is the basic structure of the Indian Constitution.

Supreme Court in Dr. D.C. Wadhwa Case held that re-promulgating the ordinance is a fraud on the Constitution of India. Supreme Court also held it improper and invalid and directed the government that whenever an ordinance is made and the government wishes to continue the provisions of the ordinance after re-assembly of the legislature, a fresh bill was introduced before the legislature for enacting those provisions. There must be no Ordinance Raj in the Country.

Types of Bills 

There are four different types of bills presented before the Parliament.

1. Money bill (under Article 110 (a)(f))
2. Constitutional amendment bills (under Article 368)
3. Ordinary legislative bills
4. Financial bills

Assent of to the legislations and the veto powers of the President 

For money bills 

When a money bill is presented to the President after it is passed by both the houses of the Parliament, then under convention (not by constitutional obligation), he shall gave his assent to the money bill or he may declare that he withholds the assent to the bill which is known as the application of Absolute Veto. However, the President applies the absolute veto only on the advice given by the Council of Ministers.

For Constitutional Amendment bills 

A Constitutional Amendment bill under Article 368, when passed by the Parliament and presented to the President, then under Constitution President has no choice but to give his assent or he may declare that he withhold the assent (Absolute Veto). However, he can do so only on the advice of the Council of Ministers not in his own discretion.

24th Constitutional Amendment Act, 1971 made it obligatory for the President to give his assent to the Constitutional Amendment Bill.

In case of Ordinary and Financial bills 

In case of Ordinary and Financial bills passed by the Parliament, the President has 4 options -

1. He may give his assent tot he bill and the bill becomes an act.
2. The President may declare that he withholds the assent to the bill (i.e., Absolute Veto). However, the President can't apply absolute veto on his own, i.e., in his discretion but only when advised by the Council of Ministers.
3. The President may refer the bill back to the Parliament for its reconsideration with or without suggestion. This action of the President is called as Suspensive Veto. However, of Parliament passes the bill for the second time in its original or modified form, then the President has to give his assent.
4. The President may even allow the bill to lie on his table for an indefinite period of time without giving assent. This action of the President is known as Pocket Veto.

Note - The president exercises Suspensive Veto or Pocket Veto in his own discretion, i.e., without the advice of the Council of the Ministers.

Summary 

• Money bills - 
• The president gives his assent under convention (not as Constitutional obligation).
• The president can exercise Absolute Veto only on the advice of the Council of the Ministers.
• Constitutional Amendment bills
• Gives assent (Constitutional obligation)
• Ordinary or Financial Bills
• Can give assent or
• Can exercise Absolute Veto on the advice of the CoM or
• Can exercise Suspensive Veto and sent back for reconsideration or
• Can exercise Pocket Veto.

Discretionary Powers of the President 

• The Constitution did not explicitly mention about the discretionary powers of the President whereas Constitution explicitly mentioned some discretionary power of the Governor.

Constitution of India has not dealt with the discretionary powers of the President. However a careful reading of various provisions of the Constitution tells us that he has got some discretionary powers such as -

1. Under Article 74 President must act on the aid and advice of the Council of Ministers however he can send back the advice for the reconsideration to the Council of Minister once in his discretion
2. President can applies Suspensive veto and Pocket veto in his discretion.
3. Under Article 85, the houses of the Parliament shall be summoned in such a way that not more than 6 months lapse between two successive session of the parliament. Normally, President summons the session of the parliament on the advice of the Council of Minister in form of 3 regular sessions. However, if Council of Minister does not advice the president to call the session and in this process 6 months period lapses between the two sessions, the president in his discretion can summon the houses of the parliament on his own.
4. Under Article 78, Prime Minister has the duty to inform the president about the affairs of the administration and proposed legislations to be put in the parliament, i.e., president has to be informed of these issues thereby he enjoys discretion to call upon the Prime Minister and ask for the relevant information.
5. Under convention established in England, President enjoys right to warn and right to encourage Council of Minsters and he does that in his discretion.
6. When after Lok Sabha election no political party or coalition of political parties enjoyed majority in Lok Sabha, then the President may enjoy discretionary power in Lok Sabha to invite the leader of any political party to form the new government.
7. President is bound to act according to the advice of Council of Ministers regarding dissolution of Lok Sabha only if the Council of Minister enjoys the majority in Lok Sabha. Other wise the President has discretionary power to dissolve or not to dissolve the Lok Sabha.
8. In case of caretaker government where only day to day administrative decisions are to be made, it is the president who in his discretion shall decide which are the decisions of administrative necessity which must be taken by the caretaker government.
9. Under Article 78(c), the president can refer individual decision of a minister for the collective consideration of the Council of Minister enforcing collective responsibility on the Council of minister.
10. Under Article 72 the president has the power to grant pardon, reprieve, respite, remission or commute any conviction/punishment.
• Pardon - Completely absolves the offenders from all punishment and convictions.
• Reprieve - A stay on the execution of sentence for a temporary period.
• Respite - Awarding lesser punishment or reduction in gravity or severity of the punishment on special grounds.
• Remission - Reduction of sentence without changing its nature.
• Commutation - Substitution of one form of punishment from another which is of lighter character.

• President can give these reliefs against the judgements of military courts also. 
• Governor can also give these reliefs however he can't take a case related to military court judgement nor he can pardon death sentence.

Power of President under Article 72 is Executive in nature not judicial in nature since unlike judicial body president is not acting like a court of appeal and he may chose not to entertain appeals and so Supreme Court has declared that these powers of the President are his discretionary powers.

Other Powers of the President 

1. Military Powers - 
• He is the supreme commander of the Armed forces. 
• He declared war or peace.
2. Diplomatic Powers - 
• He represents India at international level/forum. International treaties and agreements are made in his name. 
• He sent and receive ambassadors.
3. Emergency Powers - The President enjoys three types of Emergency powers. These are - (These are discussed later in separate Article)
1. National Emergency (Under Article 352)
2. Presidential Rule/State Emergency (Under Article 356)
3. Financial Emergency (Under Article 360)
4. Financial Powers -
• President causes the budget to be laid before the parliament.
• Money bills can be introduced only with the prior recommendation of the president.
• Money can be released from the contingency after the sanction of the president.
• President constitutes Finance Commission (under Article 280) after every 5 years.
• No demand of grant can be made except on the recommendation of the president.
5. Administrative/Executive Powers -
• All the Executive functions are carried out in the name of the president.
• The president appoints the Prime Minister and other ministers of union.
• He also appoints Attorney General of India, CAG, Judges of Supreme Court and High Courts, Governor, etc.
• Infact every appointments of the union government is made either by the president or under his authority.
• Similarly these officers are also removed by the use of executive powers of the president.
6. Legislative Powers -
• President is an integral part of the parliament as no bill passed by the parliament becomes an act unless assent is given by the president.
• He nominates 2 members in Lok Sabha and 12 Members in Rajya Sabha. (104th Constitutional Amendment Act 2019 abolished the nomination of 2 Anglo-Indians to Lok Sabha).
• He causes certain reports and statements to be put before the parliament. For Example - Annual Financial Statement, Reports of CAG, Reports of National Commission of SC, ST, Minorities, etc, Recommendations made by the Finance commissions, etc.
• Certain bills can't be introduced in the parliament without the prior recommendations of the president. For Example - Money bill, Financial bill, A bill under Article 3 (to change the name, area, boundary of a state), etc.
• Ordinance making power of the President.
7. Veto Powers - President of India enjoys three veto powers.
1. Absolute Veto
2. Suspensive Veto
3. Pocket Veto
4. Qualified Veto - not enjoyed by the President of India.

Powers and Position of the Indian President

From the perspective of Constitution 

• Article 74 - works according to the aid and advice of the CoM
• Explicitly did not mention about the discretionary power

From the perspective of Judiciary 

• Ramjaya Case & Shamsher Singh Case → President as only the nominal head 

From the perspective of the Constitution makers 

• BR Ambedkar - Indian president is like a British Monarch (CoM>President)
• Rajendra Prasad - Both are not same

Actual working of the President on the ground 

From the Perspective of the Constitution 

Constitution of India has given elaborate powers to Indian president. However, constitution has not explicitly acknowledge about the president having discretionary powers. Also because of Article 74, president is supposed to exercise his elaborate powers as per the advice of the Council of Minister which is effectively binding on the president. Thus, he does not appear to be a very powerful office.

From the Perspective of the Judiciary 

Supreme Court in various cases has clarified the position of the president by saying that since Indian constitution provides for a parliamentary system of the government in which head of the state, i.e., president is only a nominal head of the state and the real executive powers are vested in Council of Minister.

Decisions of the union are only taken in the name of the president, however in reality those decisions are taken by union council of ministers.

Supreme Court further clarified that wherever constitution mentioned that it is the satisfaction of the president then in real sense it is not his personal satisfaction rater it is the satisfaction of the council of ministers.

Also even in a dissolved Lok Sabha, there has to be a council of minister if not a regular one then a caretaker council of minister. This shows that president can't exist and function without the support of the council of ministers.

From the perspective of the Constitution makers 

Dr. B.R. Ambedkar had a view that the President of India occupies the same position as occupied by the British monarch where he/she only represents the country but does not rule, i.e., he/she is only a figure/nominal head of the country. Therefore, the President of India is the Constitutional head of the State but not the head of the Government.

Whereas, Dr. Rajendra Prasad had a different view and argued that the Indian President must not be seen as a copy of British monarch, since Indian president comes to the office after winning an election whereas the British monarch is a hereditary position.

Neelam Sanjiva Reddy once said that political parties contest hard to support their own person to become the President, which itself is a proof that this office must be powerful enough.

Actual working of the President on the ground 

• Activist President - 
• Dr. Rajendra Prasad
• Zail Singh
• K.R. Narayanan
• A.P.J. Abdul Kalam
• Pranav Mukherjee
• PM's President - 
• V.V Giri
• P.A. Ahmed
• Pratibha Patil

Beside the powers associated with the office of the President, it is the very person who occupies the office which can make difference.

We have seen presidents like Dr. Rajendra Prasad, Zail Singh, K.R. Narayan, etc. who have asserted themselves for the cause of the democracy and saving the constitution from coming under threat. These presidents can be referred as Activist Presidents.

However, there have been some presidents who had been described as PM's presidents who have not been much activist.

Former President K.R. Narayanan described the position of Indian president as an Emergency lamp who does not assert himself when situation is normal. However, he uses his situational discretionary powers to fight off a threat to the democracy if at all there is.

Source: IAS Baba

HOTs 

Can MLAs of suspended legislature vote in presidential election when state in under emergency?

• Yes

Can MLAs of dissolved legislature vote in presidential election?

• No, since they ceases to be an MLA

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Note - This is my Vision IAS Notes (Vision IAS Class Notes) and Ashutosh Pandey Sir's Public Administration Class notes. I've also added some of the information on my own. 

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