Art 52.
There shall be a President of India.
Constitutional Position of
President
- President is a figure-head
while the Council of Ministers wields the real executive power. As, Article 53, vest the executive power of
the Union in the President. While, Article
74 (42nd Amendment, 1976) provides that there shall be a Council of
Ministers to aid and advise the President in the exercise of his functions.
- By 44th Amendment, 1978 a provision was added in Art. 74 that
"the President may ask Council of Ministers to reconsider such advice and
the President shall act in accordance with the advice tendered after such
reconsideration.
- President of India, similar to the king under
the English Constitution is nominal or constitutional head of the Government;
as India provides parliamentary form of government which is adopted from
British Constitution.
- However, His position is different from the
President of the United States of America who is the real executive head as
presidential form of government is prevailing in America.
Election:
- The President of India is
elected indirectly which reflects his role as a figure head.
- Art 54.
- The President of India is elected by an- electoral college consisting of the
elected members of both Houses of Parliament, legislative assemblies of the
states and the elected members of the legislative assemblies of the Union
Territories of Delhi and Puducherry.
- The manner of election of
President is provided by Article 55.
- The election is held in
accordance to the system of Proportional
representation by means of Single
transferable vote method.
- Anti defection laws are not
applicable for voting in Presidential Elections. Since the election is by
secret voting, political parties cannot identify the voting patterns easily.
- In the election of the President the
Proportional representation system is used to bring about parity between the
votes of the members of Parliament and the members of the Assemblies.
- The formula to determine the
weight of vote is:
Population of the state
--------------------------------------*
1000 = Value of vote of each M.L.A.
No. of M.L.A.s in the state
Total no. votes assigned to
all the M.L.A.s
-------------------------------------------------------
= Weight of votes of each M.P.
Total no. of elected M.P.s
- Each voter is allowed to
exercise as many preferences as candidates are there. The voter indicates his
order of preferences on the ballot paper. A candidate in order to be elected
must secure his quota of votes which is 50% of valid votes +1. If no candidate secures the quota, the
candidate with the fewest votes is eliminated and that candidate's votes are
transferred. This process repeats till a candidate gets the quota of votes
required to win.
- Art. 56,
the term of President to hold office is five years from the date on which he
enters upon his office until, he resigns or impeached.
- In case of resignation, the
President hands over the letter to the Vice-President of India.
- Art. 57,
President, subject to the other provisions of the Constitution is eligible for
re-election.
Election disputes
- Article 71 -Election disputes
- All disputes in connection
with the election of a President shall be decided by the Supreme Court and
whose decision shall be final.
- If the election of President
is declared void by the Supreme Court, acts done by the office of President on
or before the date of the decision of the Supreme Court shall not be
invalidated.
- The election of President
shall not be called in question on the ground of the existence of any vacancy
in the Electoral College.
Eligibility
- Article 58 sets the qualifications of 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.
- Certain office-holders 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.
Oath or affirmation
Article 60 - The President take oath in the presence of the Chief Justice of India
(or in his absence, the senior-most Judge of the Supreme Court), that he shall protect, preserve and defend
the Constitution.
Powers and duties
Legislative
(i) He can summon or
prorogue the Parliament;
(ii) He can dissolve
the sitting Lok Sabha and call for fresh elections;
(iii) He can send the
message to both the house of Parliament.
(iv) He addresses a
joint session of both the houses of the Parliament after the general elections
and also at the beginning of the first session each year.
(v) If there is a
deadlock in the process of legislation between both the Houses of Parliament,
the President has the power to summon a joint session to do away with the
impasse.
(vi) The constitution
requires the previous sanction of the President for introducing certain
legislations for example
· Bill which seeks
to create a new state or change the boundary of an existing state or change the
name of a state.
· Bill which deals
with Fundamental Rights.
· Money bills
(vii) All bills passed
by the Parliament can become laws only after receiving the assent of the
President.
President on receiving the bill from parliament
can:
a.
Give his accent.
b.
Withhold his
accent.
c.
Return the bill
for reconsideration.
· He 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 it.
· The President can
also withhold his assent to the bill (rather than return it to the
Parliament).It is called pocket veto.
(viii) He issues ordinances when either of the two
Houses of the Parliament is not in session.
· Presidential
ordinance have the same force and effect as laws passed by Parliament.
· These are
temporary legislation which requires parliamentary approval for their
continuance as soon as Parliament is convened.
· Ordinances remain
valid for no more than six weeks from the date the Parliament is convened.
· The ordinance
becomes in operative if before the expiry of six weeks a resolution is passed
by Parliament against it.
· The ordinance may
be withdrawn by the President at any time.
(ix) He can appoint
any member of the Lok Sabha to preside over its proceedings when the offices of
both, the Speaker and Deputy Speaker fall vacant simultaneously.
(x) He can appoint
any member of the Rajya Sabha to preside over its proceedings when the offices
of both, the Chairman and Deputy Chairman fall vacant simultaneously.
(xi) He can nominate two members from Anglo Indian
Community to the Lok Sabha, if he is satisfied that the Community is not
adequately represented in the House.
(xii) He can nominate
twelve members to the Rajya Sabha from among persons having special knowledge
and practical experience of science, art, literature and social service.
(xiii) He causes some
important reports to be laid before the Parliament. Some of the many reports
are : reports of Comptroller and Auditor General, Finance Commission, Union
Public Service Commission, Language Commission are some of the many reports
caused by the President to be laid before the Parliament.
Executive powers
1. All the executive
powers of the Central Government vests in the President. (Art 53)
2. The President is
the chief executive of the country. Administration of the country is carried
out on his name.
3. He is the Supreme
Commander of the Indian Armed Forces.
4. He appoints the Prime Minister and the other
members of the Council of Ministers at the centre.
5. He also, distributes portfolios to Council of
Ministers on the advice of the Prime Minister.
6. He shall have a right to be informed of the
affairs of the union.
7. He makes major appointments in the country,
such as
· Governors of the
States,
· the Judges of the
Supreme Court and High Courts,
· Election
Commissioner,
· Comptroller and
Auditor General of India.
· the Attorney
General
· The Chairman and
other Members of the Union Public Service Commission.
8.
He makes the appointments of Indian
Ambassadors to other countries and receives the ambassadors of other countries
to India.
Financial powers
- No Money Bill can
be presented before the Lok Sabha without the prior permission of the
President.
- Budget of the
Centre Government is presented before the Lok Sabha by the Union Finance
Minister only with the permission of the President.
- The President
appoints a finance commission every five years to recommend the distribution of
taxes between Centre and States.
- The Contingency Fund of India is at his
disposal. He can make advances out of it to meet the unforeseen expenditure.
Judicial
powers
The purpose of granting such
powers to the President is to rectify the possible judicial errors.
1. The President
appoints the Chief Justice and other Judges of the Supreme Court.
2. The President
dismisses the judges if the two Houses of the Parliament pass resolutions to
that effect by two-thirds majority of the members present.
3. He also appoints
the Judges of High Courts of the Indian States.
4. He has the power
to pardon or to decrease the punishment of a criminal.
According to Article 72, the President can grant pardons in the following
situations:
· When, punishment is for offence against Union Law
· When, punishment is by a Military Court
· When, sentence is a death sentence
5. He can
seek the advice of the Supreme Court on any legal or constitutional matter.(Art.143). However it is up to the
Supreme Court whether to render any advice to the President and on the other
hand it is for the President either to accept or reject such advice if
tendered.
6. While in office,
the President enjoys the judicial immunity:
· No criminal proceedings can be initiated against him during
his term in office.
· He is not answerable for the exercise of his/her duties.
Diplomatic
powers
1. All international
treaties and agreements are negotiated and concluded on behalf of the
President.
2. The President
represents India in international forums.
3. The President
send and receive diplomats.
Military
powers
- The President is
the supreme commander of the defence forces of India.
- The President can declare war or conclude
peace subjected to the approval of parliament.
- He appoints the heads of the armed forces.
Emergency powers
The President can declare
three types of emergencies: national, state and financial.
a. National emergency
- The President of India under Article
352 can declare emergency at any time when he is satisfied that security of
India or part thereof has been threatened by war, external aggression or armed
rebellion.
- 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").
- The President can declare such an emergency only on the basis of a
written request by the Cabinet Ministers headed by the Prime Minister.
- This must be approved by resolutions of both houses of Parliament within
one month from the date of its issue.
- It may continue for indefinite period but it must be extended every six
months through Parliamentary approval.
- All such resolutions must be
passed by a majority of two thirds of members in both the Houses.
- The President can revoke it any time.
- During National Emergency Federal structure of the country is converted
to unitary for purposes of uniformity of administration. Due to which President
acquires following extra-ordinary powers:
- The law making power of Parliament is extended
to the items in the state list. Such laws are valid upto a maximum period of
six months after the expiry of emergency.
- The President can issue directions to any state in a manner as the power
to be exercised by State executive.
- The President can rearrange the distribution of revenues between the
union and the states to ensure availability of sufficient funds to the central
government.
- The President can suspend fundamental rights except (Article 20) Right in respect of
conviction for offenses and (Article 21)
Right to Life and Personal liberty.
- Art. 19 can only be suspended during external
emergency and not during internal disturbance.
- The President can extend the life of the
Parliament by a year.
b.
State
emergency
- State
emergency, also known as President's rule, is declared due to breakdown of
constitutional machinery in a state.
- A
State Emergency can be imposed under:
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.
- Such
an emergency must be approved by the Parliament within a period of two months.
- It
can be imposed from six months to a maximum period of three years with repeated
parliamentary approval every six months. . 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.
During such an emergency:
·
President takes
over the administration of the state.
·
He authorizes the
Governor of the state to run its administration on his behalf.
·
He cannot
interfere with the jurisdiction of the concerned State High Court.
·
The Legislative
Assembly can be dissolved or may remain suspended and the powers of the State Legislature
are exercised by the Parliament.
c.
Financial emergency
If
the President of India feels satisfied that the financial stability of India or
any of its part is seriously affected he may proclaim financial emergency under
Art 360.
·
It must be
approved by the Parliament within two months.
·
It has never been
declared.
·
It 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.
Discretionary powers of President
In general, the President of
India accepts the advice of the Council of Ministers at the centre. But in some
circumstances he acts in his discretion. These circumstances or situations are:
- According to Art. 74 and Art 111, President can seek reconsideration of an issue from the
Council of Ministers.
- The President on
his own decision can ask for information about the workings of the government
from the Prime Minister according to Art.
78.
- If after the Lok
Sabha election, majority is not obtained by any party, then the President uses
his discretionary power to choose the Prime Minister.
- When the Prime
Minister, feels that his government no longer enjoys the support of majority in
the Lok Sabha, he can recommend fresh election to the President. However,
President is not bound to accept his advice.
- If a Governor,
without giving assent to a bill passed by the state legislature, sends it to
the President for his assent, the president may give assent to it or he may
return it for reconsideration of the state legislature.
- If
the bill, after reconsideration by the state legislature, is again sent to the
President for his assent, he may or may not give assent to the bill. This bill
becomes defunct if it fails to get the assent of the President.
Removal
Art. 61,
The President may be removed before the expiry of the term through impeachment.
· President can be
removed for violation of the Constitution of India. As he takes oath to
protect, preserve and defend the Constitution.
· The process may
start in either of the two houses of the Parliament.
· The house
initiates the process by levelling the charges against the President.
· The charges are
contained in a notice that has to be signed by at least one quarter of the
total members of that house.
· The notice is
sent to the President and 14 days later, it is taken up for consideration.
· A resolution to
impeach the President has to be passed by a two-third majority of the total
members of the originating house.
· It is then sent
to the other house.
· The other house
investigates the charges that have been made. During this process, the
President has the right to defend himself through an authorized counsel.
· If the second
house also, approves the charges by two-thirds majority. Then, President stands
impeached and is deemed to have vacated his office from the date when such a
resolution stands passed.
· Other than
impeachment, no other penalty can be given to the President for the violation
of the Constitution.
· No president has
faced impeachment proceedings so the above provisions have never been used.
Art. 62,
the election of the President must be conducted within six months from the date
of vacancy occurs due to his death, resignation or removal.
Also, election to fill the
vacancy caused by the expiration of the term of office of President shall be
completed before the expiration of the term.
Article 65 - Whenever the presidential office falls vacant on account of his
death, resignation or impeachment the Vice-President succeeds him for a period
of six months.
Legal
immunity to President during his tenure:
- He is not
answerable to any court of law while discharging his responsibilities.
- He cannot be
arrested or imprisoned in connection with any civil or criminal case.
- However, civil
suits may be instituted against him by serving at least two months notice.
