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constitutional_law:president_of_india

The President of India

The President of India is the head of state of the Republic of India. The President is the formal head of the legislature, executive and judiciary branches of Indian Democracy and is the commander-in-chief of the Indian Armed Forces. The powers to pardon and clemency vest with the President of India

The President is elected, from a group of nominees, by the elected members of the Parliament of India (Lok Sabha and Rajya Sabha) as well as of the state legislatures (Vidhan Sabhas), and serves for a term of five years Historically, ruling party (majority in the Lok Sabha) nominees have been elected and run largely uncontested. Incumbent presidents are permitted to stand for re-election. A formula is used to allocate votes so there is a balance between the population of each state and the number of votes assembly members from a state can cast, and to give an equal balance between State Assembly members and National parliament members. If no candidate receives a majority of votes, then there is a system by which losing candidates are eliminated from the contest and their votes are transferred to other candidates, until one gains a majority. The Vice-President is elected by a direct vote of all members (elected and nominated) of the Lok Sabha and Rajya Sabha.

Although Article 53 of the Constitution of India states that the President can exercise his or her powers directly, with few exceptions, all of the authorities vested in the President are in practice exercised by the Council of Ministers, headed by the Prime Minister

POWERS AND DUTIES

Legislative

The President summons both the Houses (the Lok Sabha and the Rajya Sabha) of the Parliament and prorogues them. He or she can dissolve the Lok Sabha. These powers are formal, and by convention, the President uses these powers according to the advice of the Council of Ministers headed by the Prime Minister.

The President inaugurates the Parliament by addressing it after the general elections and also at the beginning of the first session each year. Presidential address on these occasions is generally meant to outline the new policies of the government.

All bills passed by the Parliament can become laws only after receiving the assent of the President. The President can return a bill to the Parliament, if it is not a money bill or a Constitutional amendment bill, for reconsideration. When after reconsideration, the bill is passed and presented to the President, with or without amendments, President is obliged to assent to it. The President can also withhold his assent to the bill thereby exercising pocket veto.

When both Houses of the Parliament are not in session and if government feels the need for immediate action, President can promulgate ordinances which have the same force and effect as laws passed by Parliament. These are in the nature of interim or temporary legislation and their continuance is subject to parliamentary approval. Ordinances remain valid for no more than six weeks from the date the Parliament is convened unless approved by it earlier.

Executive powers

The Indian Constitution, vests in the President of India, all the executive powers of the Central Government. The President appoints the Prime Minister, the person most likely to command the support of the majority in the Lok Sabha (usually the leader of the majority party or coalition). The President then appoints the other members of the Council of Ministers, distributing portfolios to them on the advice of the Prime Minister.

The Council of Ministers remains in power during the ‘pleasure’ of the President. In practice, however, the Council of Ministers must win the support of the Lok Sabha. If a President were to dismiss the Council of Ministers on his or her own initiative, it might trigger a Constitutional crisis. Thus, in practice, the Council of Ministers cannot be dismissed as long as it commands the support of a majority in the Lok Sabha.

The President is responsible for making a wide variety of appointments. These include

  • Governors of States
  • The Chief Justice, other judges of the Supreme Court and High Courts of India
  • The Attorney General of India
  • The Comptroller and Auditor General
  • The Chief Election Commissioner and other Election Commissioners
  • The Chairman and other Members of the Union Public Service Commission
  • Ambassadors and High Commissioners to other countries

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 punishment of death.

The decisions involving pardoning and other rights by the President are independent of the opinion of the Prime Minister or the Lok Sabha majority. In most other cases, however, the President exercises his or her executive powers on the advice of the Prime Minister and the cabinet.

Financial powers

All money bills originate in Parliament, but only if the President recommends it. He or she causes the Annual Budget and supplementary Budget before Parliament. No money bill can be introduced in Parliament without his or her assent. The President appoints a finance commission every five years. Withdrawal from the contingency fund of India is done after the permission of President.

Judicial powers

The President appoints the Chief Justice of the Union Judiciary and other judges on the advice of the Chief Justice. He/she dismisses the judges if and only if the two Houses of the Parliament pass resolutions to that effect by two-thirds majority of the members present.

If they consider a question of law or a matter of public importance has arisen they can ask for the advisory opinion of the Supreme Court. They mayor may not accept that opinion.

He/she has the right to grant pardon, to suspend, remit or commute the death sentence of any person.

He/she enjoys the judicial immunity:

  • No criminal proceedings can be initiated against him/her during his term in office.
  • He/She is not answerable for the exercise of his/her duties.

Basic terminologies used:

  1. Pardon: Completely absolves the guilt of the offender
  2. Reprieve: Temporary suspension of the sentence
  3. Respite: Awarding a lesser sentence on special ground
  4. Remission: Reducing the amount of sentence without changing its character
  5. Commutation: Substitution of one form a punishment for another form which is of a lighter character

Diplomatic powers

All international treaties and agreements are negotiated and concluded on behalf of the President. However, in practice, such negotiations are usually carried out by the Prime Minister along with his Cabinet (especially the Foreign Minister). Also, such treaties are subject to the approval of the Parliament. The President represents India in international forums and affairs where such a function is chiefly ceremonial. The President may also send and receive diplomats, i.e. the officers from the Indian Foreign Service. The President is the first citizen of the country.

Military powers

The President is the supreme commander of the defence forces of India. The President can declare war or conclude peace subject to the approval of parliament only under the decision of the Council of the Armed Forces Chief staffs, Military Secretary and President’s Officer (Deputy Military Secretary). All important treaties and contracts are made in president’s name.

Pardoning Powers

As mentioned in Article 72 of Indian Constitution, the President is empowered with the powers to grant pardons in the following situations:

  • Punishment is for offence against Union Law
  • Punishment is by a Military Court
  • Sentence is a death sentence

Emergency powers

The President can declare three types of emergencies: national, state and financial.

National emergency

National emergency is caused by war, external aggression or armed rebellion in the whole of India or a part of its territory. Such an emergency was declared in India in 1962 (Indo-China war), 1971 (Indo-Pakistan war), 1975 to 1977 (declared by Indira Gandhi on account of “internal disturbance”).

Under Article 352 of the India Constitution, the President can declare such an emergency only on the basis of a written request by the Cabinet Ministers headed by the Prime Minister. Such a proclamation must be approved by the Parliament within one month. Such an emergency can be imposed for six months. It can be extended by six months by repeated parliamentary approval, up to a maximum of three years.

In such an emergency, Fundamental Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended (Article 21)

The Parliament can make laws on the 66 subjects of the State List (which contains subjects on which the state governments can make laws). Also, all money bills are referred to the Parliament for its approval. The term of the Lok Sabha can be extended by a period of up to one year, but not so as to extend the term of Parliament beyond six months after the end of the declared emergency.

State emergency

State emergency, also known as President’s rule, is declared due to breakdown of Constitutional machinery in a state.

If the President is satisfied, on the basis of the report of the Governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the Constitution, he/she can declare a state of emergency in the state. Such an emergency must be approved by the Parliament within a period of two months.

Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum period of three years with repeated parliamentary approval every six months. If the emergency needs to be extended for more than three years, this can be achieved by a Constitutional amendment, as has happened in Punjab and Jammu and Kashmir.

During such an emergency, the President can take over the entire work of the executive, and the Governor administers the state in the name of the President. The Legislative Assembly can be dissolved or may remain in suspended animation. The Parliament makes laws on the 66 subjects of the state list (see National emergency for explanation). All money bills have to be referred to the Parliament for approval.

A State Emergency can be imposed via the following:

  1. By Article 356 - If that state failed to run constitutionally i.e. constitutional machinery has failed
  2. By Article 365 - If that state is not working according to the given direction of the Union

Government.

This type of emergency needs the approval of the parliament within 2 months. This type of emergency can last up to a maximum of three years via extensions after each 6 month period. However, after one year it can be extended only if

  1. A state of National Emergency has been declared in the country or in the particular state.
  2. The Election Commission finds it difficult to organise an election in that state.

On 19 January 2009, President’s rule was imposed on the Indian State of Jharkhand, making it the latest state where this kind of emergency has been imposed.

Financial emergency

If the President is satisfied that there is an economic situation in which the financial stability or credit of India is threatened, he/she can then proclaim a financial emergency, as per the Constitutional Article Such an emergency must be approved by the Parliament within two months. It has never been declared. On a previous occasion, the financial stability or credit of India has indeed been threatened, but a financial emergency was avoided through the selling off of India’s gold reserves.

A state of financial emergency remains in force indefinitely until revoked by the President.

The President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts, in case of a financial emergency. All money bills passed by the State legislatures are submitted to the President for approval. They can direct the state to observe certain principles (economy measures) relating to financial matters.

SELECTION PROCESS

Eligibility

Article 58 of the Constitution sets the principle qualifications one must meet to be eligible to the office of the President. A President must be:

  • A citizen of India
  • Of 35 years of age or above
  • Qualified to become a member of the Lok Sabha

A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.

Certain office-holders, however, are permitted to stand as Presidential candidates. These are:

  • The current Vice President.
  • The Governor of any State.
  • A Minister of the Union or of any State (Including Prime Minister and Chief Ministers).

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.

Under the Presidential and Vice Presidential act 1952, a candidate, to be nominated for the office of president needs 50 electors as proposers and 50 electors as seconders for his\her name to appear on ballot

Conditions for Presidency

Certain conditions, as per Article 59 of the Constitution, debar any eligible citizen from contesting the presidential elections. The conditions are:

  • The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
  • The President shall not hold any other office of profit.
  • The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
  • The emoluments and allowances of the President shall not be diminished during his term of office.

ELECTION PROCESS

Whenever the office becomes vacant, the new President is chosen by an electoral college consisting of the elected members of both houses of Parliament, the elected members of the State Legislative Assemblies (Vidhan Sabha) and the elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.

The nomination of a candidate for election to the office of the President must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Each candidate has to make a security deposit of ~15,000 (US$299.25) in the Reserve Bank of India. The security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled.

The election is held in accordance to the system of Proportional representation by means of Single transferable vote method. The Voting takes place by secret ballot system. The manner of election of President is provided by Article 55 of the Constitution.

Each elector casts a different number of votes. The general principle is that the total number of votes cast by Members of Parliament equals the total number of votes cast by State Legislators. Also, legislators from larger states cast more votes than those from smaller states. Finally, the number of legislators in a state matters; if a state has few legislators, then each legislator has more votes; if a state has many legislators, then each legislator has fewer votes.

The actual calculation for votes cast by a particular state is calculated by dividing the state’s population by 1000, which is divided again by the number of legislators from the State voting in the electoral college. This number is the number of votes per legislator in a given state. For votes cast by those in Parliament, the total number of votes cast by all state legislators is divided by the number of members of both Houses of Parliament. This is the number of votes per member of either house of Parliament.

Although Indian presidential elections involve actual voting by MPs and MLAs, they tend to vote for the candidate supported by their respective parties.

Applicability of Anti Defection Laws

Anti defection laws are not applicable for voting in Presidential Elections. Members of the electoral college are free to vote according to their conscience and and not bound to follow party whip. Since the election is by secret voting, political parties cannot identify the voting patterns easily.

CONSTITUTIONAL ROLE

Article 53(1) of the Constitution vests in the President “the executive power of the Union”, to be “exercised by him [sic] either directly or through officers subordinate to him” in accordance with the provisions of the Constitution. However, the Constitution also states that the Council of Ministers, headed by the Prime Minister, is “to “aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice”.

However, the Article 74(2) bars all courts completely from assuming even an existence of such an advice. Therefore from the courts’ point of view, the real executive power lies with the President. As far as President’s decision and action are concerned no one can challenge such decision or action on the ground that it is not in accordance with the advice tendered by the Ministers or that it is based on no advice

Created on 2020/10/19 23:13 by • Last modified on 2020/11/07 18:32 (external edit)