President

Union Executive

• Articles 52 to 78 in Part V of the Constitution deal with the Union executive.
• The Union executive consists of:
  • The President
  • The Vice-President
  • The Prime Minister
  • The council of ministers
  • The attorney general of India
• The President is the head of the Indian State, the first citizen, and the symbol of unity, integrity, and solidarity of the nation.

Election of the President

• Elected indirectly by an electoral college consisting of:

  • Elected members of both Houses of Parliament.
  • Elected members of the legislative assemblies of the states.
  • Elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.

• The following do not participate in the Presidential election:

  • Nominated members of Parliament.
  • Nominated members of state legislative assemblies.
  • Members (both elected and nominated) of state legislative councils.
  • Nominated members of the Legislative Assemblies of Delhi and Puducherry.

• The 104th Constitutional Amendment Act of 2019 discontinued the nomination of Anglo-Indian members to the Lok Sabha and State Legislative Assemblies. This provision ceased to have effect on January 25th, 2020.

• If an assembly is dissolved, its members cannot vote, even if fresh elections are not held before the presidential election.

• The Constitution ensures uniformity in the scale of representation of different states and parity between the states as a whole and the Union.

• Value of Vote Calculation:

  • MLA:

    Value = (Population of State / Total Elected Members in Assembly) * (1/1000)

  • MP:

    Value = (Total Value of Votes of all MLAs of all States) / (Total Number of Elected Members of Parliament)

• Election is held via proportional representation by single transferable vote, with secret ballot.

• To be elected, a candidate must secure a fixed quota of votes:

  Electoral quota = (Total number of valid votes polled / (1+1)) + 1

• Voters mark preferences (1, 2, 3, etc.) on the ballot.

• First preference votes are counted. If no candidate reaches the required quota, the candidate with the fewest first preference votes is eliminated, and their votes are transferred based on second preferences, and so on, until a candidate secures the required quota.

• The Supreme Court handles all election-related disputes, and its decision is final.

• Presidential election cannot be challenged on the grounds of an incomplete electoral college.

• Acts done by a President before the Supreme Court declares their election void remain valid.

• The indirect election was chosen for these reasons:

  • Harmony with the parliamentary system (President is a nominal executive).
  • Direct election would be too costly, time-consuming, and energy-consuming.
  • A directly elected president would have more power than desired.

Qualifications, Oath, and Conditions

• Qualifications:
  • Citizen of India.
  • 35 years of age.
  • Qualified to be a member of the Lok Sabha.
  • Must not hold any office of profit under the Union or state government, or any local or other public authority.
  • A sitting President or Vice-President of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit.
• Nomination must be subscribed by 50 electors as proposers and 50 as seconders.
• Security deposit of ₹15,000 in the Reserve Bank of India, forfeited if the candidate fails to secure one-sixth of the votes polled.
• Oath:
  • 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.
• Administered by the Chief Justice of India (or the seniormost judge of the Supreme Court).
• Conditions of Office:
  • Must not be a member of either House of Parliament or a state legislature.
  • Must not hold any other office of profit.
  • Entitled to use of official residence (Rashtrapati Bhavan) without rent.
  • Entitled to emoluments, allowances, and privileges determined by Parliament.
  • Emoluments and allowances cannot be diminished during the term of office.
• Salary: ₹5 lakh per month (increased in 2018).
• Pension: 50% of salary per month.
• Other benefits for former Presidents: furnished residence, phone facilities, car, medical treatment, travel facility, secretarial staff, and office expenses upto ₹1,00,000 per annum.
• Spouse of a deceased President entitled to a family pension at the rate of 50% of pension of a retired President, furnished residence, phone facility, car.

Term, Impeachment, and Vacancy

• Term: 5 years from the date of entering office.
• Can resign at any time by addressing the resignation letter to the Vice-President.
• Can be removed by impeachment for violation of the Constitution.
• Can hold office beyond the term of five years until a successor assumes charge.
• Eligible for re-election any number of times.
• Impeachment:
  • Charges can be initiated by either House of Parliament.
  • Charges must be signed by one-fourth of the members of the House.
  • A 14-day notice must be given to the President.
  • The resolution must be passed by a majority of two-thirds of the total membership of the House.
  • The other House investigates the charges. The President has the right to appear and be represented.
  • If the other House sustains the charges and passes the impeachment resolution by a majority of two-thirds, the President is removed from office.
  • Nominated members of either House of Parliament can participate in the impeachment.
  • Elected members of state legislative assemblies (including Delhi and Puducherry) cannot participate in the impeachment.
  • No President has been impeached so far.
• Vacancy:
  • Expiry of the five-year term.
  • Resignation.
  • Removal by impeachment.
  • Death.
  • Disqualification or election declared void.
• Election to fill a vacancy due to the expiration of term must be held before the expiration of the term.
• A newly-elected President remains in office for a full term of five years.
• If a vacancy occurs due to resignation, removal, death, etc., the Vice-President acts as the President until a new President is elected.
• If the President is unable to discharge duties, the Vice-President does so.
• If the office of Vice-President is vacant, the Chief Justice of India (or the seniormost judge of the Supreme Court) acts as the President.
• Any person acting as President has all the powers and immunities of the President.

Powers and Functions of the President

• Executive Powers:
  • All executive actions of the Government of India are formally taken in the President's name.
  • Can make rules specifying the manner in which orders and instruments are authenticated.
  • Can make rules for the convenient transaction of government business and its allocation among ministers.
  • Appoints the Prime Minister and other ministers (who hold office during the President's pleasure).
  • Appoints the Attorney General of India (who holds office during the President's pleasure).
  • Appoints the Comptroller and Auditor General of India, the Chief Election Commissioner and other Election Commissioners, the Chairman and members of the Union Public Service Commission, the Governors of states, the chairman and members of the finance commission, and so on.
  • Can seek any information relating to the administration of the Union from the Prime Minister.
  • Can require the Prime Minister to submit any matter for consideration of the council of ministers.
  • Can appoint a commission to investigate the conditions of backward classes.
  • Can appoint an inter-state council to promote Centre-state cooperation.
  • Administers the Union Territories through appointed administrators.
  • Can declare any area as a scheduled area.
• Legislative Powers:
  • An integral part of Parliament.
  • Can summon or prorogue Parliament and dissolve the Lok Sabha.
  • Can summon a joint sitting of both Houses (presided over by the Speaker of the Lok Sabha).
  • Addresses Parliament at the commencement of the first session after each general election and the first session of each year.
  • Can send messages to the Houses of Parliament.
  • Appoints a member of the Lok Sabha to preside when the Speaker and Deputy Speaker are absent, and similarly for the Rajya Sabha.
  • Nominated 12 members to the Rajya Sabha (for those having special knowledge or practical experience in literature, science, art and social service).
  • Decides on questions of disqualification of MPs in consultation with the Election Commission.
  • Prior recommendation or permission is needed to introduce certain bills.
  • Can give assent to a bill, withhold assent, or return a bill (except a Money Bill) for reconsideration.
  • State bills reserved by the governor can be assented to, withheld, or returned.
  • Can promulgate ordinances when Parliament is not in session (subject to certain limitations).
  • Lays reports of the Comptroller and Auditor General, Union Public Service Commission, Finance Commission, etc., before Parliament.
  • Can make regulations for the peace, progress, and good government of certain Union Territories.
• Financial Powers:
  • Money Bills can be introduced in Parliament only with the President's prior recommendation.
  • Causes the annual financial statement (Union Budget) to be laid before Parliament.
  • No demand for a grant can be made except on the President's recommendation.
  • Can make advances out of the Contingency Fund of India.
  • Constitutes a Finance Commission every five years to recommend the distribution of revenues between the Centre and the states.
• Judicial Powers:
  • Appoints the Chief Justice and judges of the Supreme Court and High Courts.
  • Can seek advice from the Supreme Court on any question of law or fact (but the advice is not binding).
  • Can grant pardon, reprieve, respite, or remission of punishment, or suspend, remit, or commute the sentence of any person convicted of any offense.
• Diplomatic Powers:
  • International treaties and agreements are negotiated and concluded on behalf of the President (subject to Parliamentary approval).
  • Represents India in international forums and affairs.
  • Sends and receives diplomats.
• Military Powers:
  • Supreme Commander of the Defence Forces.
  • Appoints the chiefs of the Army, Navy, and Air Force.
  • Can declare war or conclude peace, subject to Parliamentary approval.
• Emergency Powers:
  • National Emergency (Article 352).
  • President's Rule (Article 356 & 365).
  • Financial Emergency (Article 360).

Veto Power of the President

• The President has the veto power over the bills passed by the Parliament, that is, he/she can withhold his/her assent to the bills.
• Types of Veto:
  • Absolute Veto
  • Suspensive Veto
  • Pocket Veto
• Absolute Veto:
  • Withholding assent to a bill. The bill does not become law.
  • Exercised with private member's bills or government bills when the cabinet resigns.
• Suspensive Veto:
  • Returning a bill for reconsideration.
  • If the bill is passed again by Parliament with or without amendments, the President must give assent.
  • Cannot be used for Money Bills.
• Pocket Veto:
  • Neither ratifying nor rejecting the bill, keeping it pending indefinitely.
  • The Indian President's "pocket" is considered bigger than the American President's because the Constitution does not prescribe any time limit to act on bills.
• President has no veto power over constitutional amendment bills. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill.
• President also has veto power over state legislation. If a state bill is reserved by the governor, the President can:
  • Give assent
  • Withhold assent
  • Direct the governor to return the bill.
  • However, the President is not bound to give assent even if the state legislature passes the bill again. Therefore the pocket veto can be used.

Ordinance-Making Power of the President

• Article 123 empowers the President to promulgate ordinances during the recess of Parliament.
• Ordinances have the same force and effect as an act of Parliament but are temporary laws.
• Limitations:
  • Can only promulgate when both Houses are not in session, or when either House is not in session.
  • Can only make an ordinance when satisfied that circumstances exist that render immediate action necessary. The Cooper case (1970) established that the Supreme Court can question this satisfaction.
  • Ordinance-making power is coextensive with Parliament's law-making power (except for duration).
  • Ordinance can be issued only on subjects on which Parliament can make laws.
  • Ordinance is subject to the same constitutional limitations as an act of Parliament.
  • Ordinances must be laid before both Houses when Parliament reassembles and will cease to operate in six weeks, in case of non-approval by the Parliament.
• The President can also withdraw an ordinance at any time, however this can only be done with the advice of the council of ministers headed by the Prime Minister.
• Ordinances can be retrospective.
• Rules of Lok Sabha require a statement explaining the need for immediate legislation by ordinance when a bill seeking to replace an ordinance is introduced.

Pardoning Power of the President

• Article 72 empowers the President to grant pardons.
• Applies in cases where:
  • Punishment is for an offence against a Union Law.
  • Punishment is by a court martial.
  • Sentence is a sentence of death.
• The President's pardoning power is independent of the judiciary.
• Purposes:
  • To correct judicial errors.
  • To afford relief from unduly harsh sentences.
• Includes:
  • Pardon: Removes sentence, conviction, and disqualifications.
  • Commutation: Substitutes a lighter form of punishment.
  • Remission: Reduces the period of the sentence without changing its character.
  • Respite: Awards a lesser sentence due to a special fact.
  • Reprieve: Stays the execution of a sentence temporarily.
• The Governor of a state also has pardoning power (Article 161), but the President's power differs in that:
  • The President can pardon sentences inflicted by court martial, while the governor cannot.
  • The President can pardon death sentences, while the governor cannot (the governor can only suspend, remit or commute a death sentence).

Constitutional Position of the President

• India has a parliamentary form of government. The President is a nominal executive who must act on the aid and advice of the council of ministers headed by the Prime Minister.
• Dr. B.R. Ambedkar emphasized that the President of India occupies a position similar to the King under the English Constitution.
• The 42nd Constitutional Amendment Act made the President bound by the advice of the council of ministers.
• The 44th Amendment authorized the President to require reconsideration of the advice, but the reconsidered advice is binding.
• The President has some situational discretion:
  • Appointment of Prime Minister when no party has a clear majority.
  • Dismissal of the council of ministers that cannot prove confidence.
  • Dissolution of the Lok Sabha if the council of ministers has lost its majority.