Power Of President Under Indian Constitution

The office of the President is very august and the Constitution attaches to it many privileges and immunities. The President along with the Council of Ministers headed by the Prime Minister comprises the Central executive which has been dealt from Article 52 to 78 of the Constitution.

The President is the head of the state and the formal executive. All executive action at the centre is expressed to be taken in his name. This power has been granted to him under Article 53(1) which states that the executive power shall be vested in the President and shall be exercised by him directly or through officers subordinate to him.

The President of India is the head of state and first citizen of India and the Supreme Commander of the Indian armed forces. In theory, the President possesses considerable power. In practice, the President's role is comparable to those of a constitutional monarch, and indeed the office replaced that of the British monarch (represented by the Governor General) upon India's independence.

The Constitution only formally vests functions in the hands of the President. In reality he has no function to discharge his discretion and or his individual judgment. He has to act on ministerial advice and therefore the Prime Minister and the Council of Ministers constitute the real and effective executive.

It is said that this structure of the central executive closely resembles the British Model which functions on the basis of unwritten conventions. In India some of these conventions have been written in the Constitution with regards to tenure, appointment and collective responsibility of the Ministers. However, still some matters have been left to conventions for example the accountability of the Cabinet and the Minister for the acts of his subordinates.

The office of the president is created by Article 52 of the Constitution and the matters of election are dealt from Article 54 to 60 of the Constitution. The President is elected by the method of indirect election i.e. by an electoral college consisting of elected members of both Houses of Parliament and of the State legislative assemblies. The method of indirect election was to emphasize the ministerial character of the executive that the effective power resides in the Ministry and not in the President as such. Secondly, the method of direct election would have been very costly and energy consuming. There was also the fear that a directly elected President may in course of time assume all the power.

The President derives its power from Article 53 which vests in him all the executive authority including the Supreme Command of the Armed forces. There are several other provisions in the Constitution which mention specific functions of the President. Briefly the President has the power to appoint all important offices including those of the Prime Minister and other Central Ministers, Governors, Judges of the Supreme Court and the High Courts and even Election commissioners. He even he has the authority to appoint commissions with respect to the administration of scheduled areas. Most importantly the President is vested with wide powers during Emergency under Article 352 to 360 of the Constitution including suspension of Fundamental rights. Moreover every bill comes to him for his assent and can either refuse to give his assent or send it back for reconsideration.

CHAPTER 1

ELECTION OF THE PRESIDENT

The office of the president is created by Article 52 of the constitution. The president is elected not directly by the people but my method of indirect election.

1.1 Qualifications for Presidential Candidate

Article 58 of the constitution lays down that the person to be eligible for the president should be at least 35 years of age, a citizen of India and should be qualified to be a member of the Lok Sabha. A person is also not qualified to stand for election as President if he holds office of profit.

The conditions of the President’s office are that they cannot be members of any legislature and if they are such members at the time of their election or appointment they are deemed to have vacated their seats in such legislature when they enter upon their office. [1] 

1.2 Manner of election of the president

The president of India is not directly elected by th epeople. Art 54 provides that the President shall be elected by an electoral college consisting of the:

a) elected members of both houses of Parliament

b) elected members of the legislative assemblies of the state.

The nominated members of the Houses at the Centre and the states do not have voting rights in the election of President. The election of President shall be held in accordance with the system of prportional representation by means of the single transferable vote. The sysytem adopted for votiong is secret ballot. The constitution provides that as far as practicable there shall be uniformity in the scale of representation among the states inter-se as well as parity between the states as a whole and the Union at the election of the President. For the purpose of securing such uniformity among the states, the parity between the Union and states, the following formula is adopted:

1) every elected member of the legislative assembly of a state shall have as many votes as there are multiple of 1000 in the quotient obtained by dividing the population of the state by the total number of the elected members of the Assembly. If by this division, the remainder is 500 or more, it will be counted as if vote of each member is increased by one. Thus, the number of votes which a member of legislative assembly is entitled to cast in the presidential election is based on the ratio of population of the state.

state population x 1

Total numbers of elected members 1000

in the state legislative assembly

2) the number of votes which elected members of Parliament is entitled to cast shall be obtained by dividing the total number of votes of th elegislative assemblies of all the states obtained underthe above formula, by total number of the elected members of both Houses of Parliament. If by this division the reminder exceeds one-half it will be counted as one. This formula secures parity of votes between the members of Parliament, and of the legislative assemblies of the state.

Total number of votes assigned to the members of the state legislative assemblies in the Electoral College

Total number of elected members of the two houses of the parliament

2

1.3 Tenure

Art 56 state that the President shall hold office for a term of five years from the date on which he enters upon his office. Even after expiry of his term he shall continue to hold offoce, until his successor enters upon his office. He is also eligible for re-election.

The President of India also enjoyes the freedom of standing/ being re nominated for the post for any number of times. However, it has never been followed. The President may also resign from the office before the expiry of his tenure, by writing to the Vice-President. He may also be removed from his office for the violation of the Constitutuion by the process of impeachment.

1.4 Impeachment of the President

Article 61 of the Constitution lays down the procedure for the impeachment ofthe President. The president can be removed from his office by a process of impeachment for the 'violation of the Constitution '. The impeachment charge against him may be initiated by either House of Parliament. The charge must come in the form of a proposal contained in a resolution signed by not less than one-fourth of the total number of the members of the House, and moved after giving at least 14 days' advance notice. Such a resolution must be passed by a majority of not less than two-thirds of the total membership of the House. The charge is then investigated by the other House. The president has the right to appear, and to be represented at such investigation. If the other House after investigation passes a resolution by a majority of not less than two-thirds of the total membership of the House declaring that the charge is proved, such resolution shall have the effect of removing the President from his office from the date on which the resolution is so passed.

CHAPTER 2

POWERS OF THE PRESIDENT

The President is the head of the state and also the head of the Central Executive. The central executive besides the President comprises of the Council of Ministers headed by the Prime Minister [3] . The Constitution formally vests many functions in the President but he has no function to discharge in his discretion or his individual judgment. The President cannot exercise personal discretion in discharge of the functions and the powers but is expected to do so on the advice of the Prime Minister and the Council of Ministers. Therefore the Prime Minister and the Council of Ministers is considered to be the real and effective executive. [4] 

The Central Executive exercises very broad and varied functions. It does not only exercise executive functions but also the power to carry out legislative as well as judicial functions.

2.1 Executive Functions

The exercise of the executive power of the Union is the function of the President.

A primary function of the executive is to administer and execute the laws enacted by the Parliament and maintain law and order. However executive function cannot be limited to this and a modern state is not expected to confine itself to a mere collection of taxes, maintaining law and order and defending the country from external aggression. The executive operates over a large area and discharges varied and complex functions.

The Central Executive is entitled to exercise executive functions with respect to all those subjects which fall within the legislative sphere of Parliament besides exercising executive functions which are exercisable by the Government of India under any treaty or agreement. [5] 

A few provisions in the constitution confer on the president some express executive powers such as [6] :

Power to make important appointments like Prime Minister and other Central Ministers [7] , Governor. Judges of the Supreme Court [8] and the High Court [9] , Chairman and members of the Union Public Service Commission [10] , the Attorney General [11] , the Chief Election Commissioner and other election commissioners [12] , and the Comptroller and Auditor General of India [13] .

He also has the power to appoint various Commissions like the Finance Commission [14] , National Commission for the Schedule caste and the Schedule Tribes [15] 

Power to enter into contracts on behalf of the Indian Union [16] 

Power to issue directions to state in certain circumstances [17] .

Besides the above, the executive power of the Union is also vested in the Union in accordance with Article 53. This executive power may be exercised either directly or through officers subordinate to him in accordance with the Constitution.

However a dispute exists with regards to this power due to the absence of a definition of the term ‘executive power’ in the Constitution. For example in Amritlal v. F.N. Rana [18] by Shah J where the Honourable Judge remarked that:

“It cannot however be assumed that the legislative functions are exclusively performed by the legislature, executive functions by the executive and judicial functions by the judiciary alone. The constitution has not made absolute or rigid divisions of function between the three agencies of the State".

The executive cannot act against a statute or exceed its statutory powers. If there exists a law on that particular matter the executive is bound to act in accordance with it. In M.P v. Bharat Singh [19] the Hon’ble Supreme court held that the executive cannot infringe the rights of private individuals without any legal authority. However in some cases the government may do any act provided it is not act assigned by the Constitution to any authority or body or it is not contrary to the provisions of any law or it does not encroach upon the individuals right without the existence of a prior legislation supporting the same. An example of this would be the acquiring of a foreign territory ceded to India. [20] 

Article 73 defines the ambit of the executive power of the centre which states that

“Subject to the provisions of the constitution" the executive power of the Centre extends to

The matters with respect to which the parliament has the power to make laws

The exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any agreement or treaty.

The above article implies that the executive power is co-extensive with the legislative power of the Parliament. However where the parliament and the legislature make laws then the Centre’s executive power extend to this area only when either the constitution or a law made by the parliament expressly provides for.

2.2 Judicial Powers

The central executive is empowered to appoint judges of the Supreme Court and the High Court under Article 124(2) and 217(1) respectively. The issue of the disqualification of the member of the parliament is also decided formally by the President.

Another important judicial power vested with the President is the power to pardon under Article 72. Article 72 lays down the cases when the President has the power to suspend, remit or commute sentences:

In all cases where the punishment or sentence is by a Court Martial

In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends

In all cases where the sentence is a sentence of death.

However Pardon should not be regarded as a matter of right. It is an act of grace. A pardon not only removes the punishment but also places the offender in the same position as if he had never committed the offence. The effect of the pardon is to clear the person from all infamy and from all consequences of the offences for which it is granted and from all statutory or other disqualifications upon conviction.

The scope of the power of the President under Article 72 to commute a death sentence into a lesser sentence has been left open by the court after observing that whether a case is appropriate to be sent for the consideration of Presidential Pardon depends on the facts and the circumstance of each particular case.

The concept of presidential pardon being subjected to judicial review was also discussed in the case of G Krishna Goud v. State of Andhra Pradesh [21] . In this case two persons were convicted for committing murder in implementing their ideology of social justice through terrorist technology and were given death sentence. They filed for Presidential Pardon which was refused. They then moved to the court under a writ petition arguing that their crime was political in nature which involved different considerations. The court dismissing the petition held that the court can only interfere when such power has not been exercised in good faith. Since, the court had not been shown any demonstrable reason or glaring ground to consider the refusal of commutation as motivated by malignity or degraded by abuse of power the court cannot interfere with such power.

Therefore this power of the president can be subjected to judicial review if the court discovers mala fide intention or political vengeance.

2.3 Legislative Powers

Legislative power of the central executive can be divided into the following heads: Participation of the executive in the legislative process: The President along with the council of ministers is both members of the parliament and participates intimately in the legislative making process. The President has the power to convene and prorogue to dissolve Lok Sabha. The President has the power to pass a bill and his assent is required for the transforming a bill passed by the two houses into an act.

The central executive’s consent is also required in passing of certain types of State legislation which fall under the ambit of Article 288(2).

Moreover in certain aspects President’s recommendation is required before the Bill is introduced before the two houses of Parliament.

Bill relating to the alteration or states of formation of new states(article 3)

A money bill cannot be introduced without the recommendation of the President (Article 117(1))

Bill involving expenditure from the Consolidated fund of India

Any bill affecting any tax in which the states are interested.

Ordinance making power

The more controversial and debatable legislative power of the President has always been the Ordinance Making Power. Usually the power to make the laws rests with the Parliament. However Article 123 confers special power on the President empowering him to promulgate ordinances when the Parliament is not in session and the circumstances are such which require immediate action. An ordinance cannot be promulgated when both the houses of parliament are in session However it may be passed when only one house is in session the reason being that a law cannot be passed by only one house and thus it cannot meet a situation calling for immediate legislation. This power granted to the President in the Indian Constitution is unique and no such power has been conferred upon the executive in Britain or the USA.

In justification of the inception of the Ordinance Making power in the Constitution Dr Ambedkar said that there might be a situation of emergency when the Houses of the parliament are not in session. It is important that this situation should be dealt with and it seems to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because the legislature is not in session. [22] 

Article 123 empowers the President to promulgate ordinance as the circumstances which appear to require when – [23] 

When both houses of the parliament are not in session

He is satisfied that the circumstances exist which render it necessary for him to take immediate action.

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