The Union Government
The President of India: Articles and Election Process,Different Powers
Key Provisions Related to the President
Article 52:
States that there shall be a President of India who is the Head of the State.
Article 53:
The executive powers of the Union are vested in the President.
These powers can be exercised directly by the President or through officers subordinate to him who provide aid and advice.
Election of the President
The procedure for electing the President is detailed in Articles 54 and 55 of the Indian Constitution.
Article 54:
The President is elected by an Electoral College, which consists of:
Elected members of both Houses of Parliament.
Elected members of the Legislative Assemblies of States.
The term State includes:
The National Capital Territory of Delhi.
Union Territory of Puducherry.
This inclusion was facilitated by the 70th Constitutional Amendment Act, 1992.
Excluded members:
Nominated members of both Houses of Parliament and State Legislative Assemblies do not participate in the Presidential election.
Members of Legislative Councils (in bicameral legislatures of states) do not have voting rights in the Presidential election.
Article 55 (3):
The election of the President is conducted using the proportional representation system through a single transferable vote.
Voting is conducted by secret ballot.
Article 55 (1):
Provides for uniformity in the representation of states and parity between states and the Union in the Presidential election.
The formula ensures a balance of votes among the states based on their population and between the states and the Union.
Disputes on Election of the President
Article 71:
Provides that all disputes related to the election of the President or Vice-President shall be:
Inquired into and decided by the Supreme Court.
The Supreme Court’s decision is final.
If the Supreme Court declares the election of the President void, any acts performed by the President before the Court’s decision remain valid.
Article 71(4):
States that the election of the President or Vice-President cannot be challenged on the basis of any vacancy in the Electoral College that elects them.
Qualifications for the Office of President
Article 58:
A candidate must fulfill the following qualifications to be eligible for the office of the President:
Citizen of India.
Completed 35 years of age.
Qualified to be elected as a Member of the Lok Sabha, which implies:
Being registered as a voter in a parliamentary constituency.
Must not hold any office of profit under the Government of India, any state government, or any local authority subject to government control.
Article 59:
The President cannot be a member of either House of Parliament or any State Legislature.
If a member of any legislative body is elected President, their seat is considered vacated upon assuming the office of President.
Oath of Office
Article 60:
The President’s oath or affirmation is administered by the Chief Justice of India.
If the Chief Justice is unavailable, the oath is administered by the senior-most judge of the Supreme Court.
Term of Office and Termination
Term of Office:
The President’s term is five years, starting from the day they enter office.
The President is eligible for re-election.
Termination Before the Term Ends:
By Resignation:
Addressed in writing to the Vice-President, who communicates it to the Speaker of the Lok Sabha.
By Impeachment (Article 61):
Impeachment is the only mechanism for removal before the completion of the term.
Ground for impeachment: Violation of the Constitution.
Impeachment of the President
Article 61:
Impeachment is a quasi-judicial procedure.
The process:
Charges can be initiated in either House of Parliament.
A detailed procedure for investigation and voting follows, requiring support from both Houses.
This procedure ensures that the President can be removed only on serious grounds, maintaining the dignity and authority of the office.
Powers and Duties of the President of India
The President of India is the constitutional head of the Union of India, with various powers and responsibilities defined in the Constitution. These powers are exercised with the advice of the Council of Ministers, as per Article 74(1).
Executive Powers
Executive Power of the Union (Article 53):
All executive powers of the Union are vested in the President.
These powers are exercised on the advice of the Council of Ministers.
Constitutional Limitations:
After the 42nd Amendment, the President is required to act based on the advice of the Council of Ministers.
The 44th Amendment allows the President to return the advice for reconsideration once. If the Council of Ministers reiterates the advice, the President must act accordingly.
Real Executive:
While the President is the constitutional head, the Council of Ministers, led by the Prime Minister, is the real executive.
Legislative Powers
Role in Parliament:
The President is an integral part of Parliament and exercises legislative powers with ministerial advice.
Assent to Bills:
When a bill is presented to the President, they can:
Assent to the bill.
Withhold assent to the bill.
Return the bill (except a Money Bill) for reconsideration.
If the bill is passed again by Parliament, the President must give assent.
Veto Powers:
For state bills reserved by the Governor, the President can:
Use absolute veto (withhold assent).
In the case of a Money Bill, either assent to it or withhold assent.
Reservation is compulsory if the law derogates the powers of the High Court.
Summoning and Proroguing Parliament (Article 85):
The President can summon or prorogue Parliament and dissolve the Lok Sabha.
Can summon a joint session of both Houses in case of a deadlock over an ordinary bill (Article 108).
Addressing Parliament:
Addresses both Houses at:
The first session after each general election.
The first session of each year.
Nomination of Members:
Rajya Sabha:
Nominates 12 members with special knowledge or experience in literature, science, art, or social service (Article 80(1)).
Lok Sabha:
Can nominate up to 2 Anglo-Indian members if the community is underrepresented (Article 331).
Reports to Parliament:
Lays reports of:
Comptroller and Auditor General (CAG).
Union Public Service Commission (UPSC).
Finance Commission.
Special Officers for SCs/STs.
Linguistic Minorities.
Backward Classes Commission.
Annual Financial Statement (Budget).
Legislation Requiring Prior Recommendation:
Bills for:
Formation of new states or altering state boundaries (Article 3).
Money Bills (Article 117(1)).
Bills involving expenditure from the Consolidated Fund of India (even if not a Money Bill).
State bills restricting Freedom of Trade (Article 304).
Judicial Powers
Disqualification of MPs:
Decides questions of disqualification of Members of Parliament, in consultation with the Election Commission.
Other Key Powers
Financial Powers:
The Annual Financial Statement (Budget) is presented to Parliament in the President’s name.
No Money Bill can be introduced without the President’s prior recommendation.
Emergency Powers:
Declares National Emergency, President’s Rule, or Financial Emergency, as per constitutional provisions.
Military Powers:
Supreme Commander of the Armed Forces.
Appoints the chiefs of the Army, Navy, and Air Force.
Veto Powers of the President of India
The President of India enjoys the power of veto, which allows them to act as a check on the legislative process. The veto powers can be classified into four types, although only three are applicable in India. Below are the details:
Absolute Veto
Definition: The power to completely reject a bill passed by both Houses of Parliament.
Effect: The bill does not become an Act and cannot be overridden by the legislature.
Applicability in India:
The President can exercise this power for non-Money Bills.
Often used when:
A private member’s bill (introduced by an MP who is not a minister) is passed by Parliament.
A government bill is passed by Parliament but the ministry has ceased to exist (e.g., after a general election or a vote of no confidence).
Suspensive Veto
Definition: The power to return a bill to Parliament for reconsideration.
Effect: If Parliament passes the bill again, with or without amendments, and presents it to the President, the President is obligated to give assent.
Applicability in India:
This veto does not apply to Money Bills. The President must give assent to Money Bills without returning them.
Pocket Veto
Definition: The power to neither assent to, reject, nor return a bill but keep it pending for an indefinite period.
Effect: The bill remains in limbo without becoming a law.
Applicability in India:
The Indian Constitution does not specify a time limit for the President to act on a bill. This allows the President to exercise a pocket veto.
Example: In 1986, President Zail Singh used the pocket veto for the Indian Post Office (Amendment) Bill, which aimed to curtail the freedom of press.
Qualified Veto
Definition: A veto that can be overridden by the legislature with a higher majority.
Example: The U.S. President can exercise a qualified veto by returning a bill with objections. Congress can override the veto by a two-thirds majority of both houses.
Applicability in India:
Not applicable. India does not have a provision for a qualified veto.
Summary of Veto Powers in India
The President of India enjoys the following veto powers:
Absolute Veto.
Suspensive Veto.
Pocket Veto.
Qualified Veto is not available in India.
Financial Powers of the President of India
The President plays a significant role in the financial governance of the country. Key financial powers include:
Presentation of the Budget:
The Annual Financial Statement (Budget) is presented to Parliament on behalf of the President.
Introduction of Money Bills:
A Money Bill can only be introduced in Parliament with the prior recommendation of the President.
Demand for Grants:
No demand for a grant can be made in Parliament except on the President’s recommendation.
Contingency Fund:
Money from the Contingency Fund of India is released only after the President’s sanction.
Finance Commission:
The President constitutes a Finance Commission every five years to recommend:
The distribution of revenues between the Centre and the States.
Principles for sharing taxes and grants-in-aid.
Conclusion
The President’s veto powers and financial authority ensure a balance of power in India’s parliamentary democracy. While the real executive powers are exercised by the Council of Ministers, the President has significant discretionary powers that serve as a safeguard for constitutional integrity.
Executive Powers of the President of India
Executive Authority:
All executive actions of the Union are taken in the name of the President.
The President acts on the advice of the Council of Ministers headed by the Prime Minister.
Appointments:
The President appoints various key officials:
Prime Minister and, on their advice, other ministers.
Judges of the Supreme Court and High Courts.
Governors of states.
Attorney General of India.
Comptroller and Auditor General (CAG).
Chairman and members of Public Service Commissions (Union and State).
Members of the Finance Commission.
Special officers for:
Scheduled Castes (SCs) and Scheduled Tribes (STs).
Linguistic minorities.
Administration of scheduled areas.
Inter-State Council members.
Commissions to investigate the condition of Backward Classes.
These officials hold office during the pleasure of the President, but their removal follows constitutional procedures.
Union Territories:
The President administers Union Territories through Administrators appointed by them.
Rules for Governance:
The President specifies the manner in which official orders and instruments executed in their name are authenticated.
Advisory Powers:
The President can seek advice from the Supreme Court on questions of law or fact. The advice is not binding.
Judicial Powers of the President of India
Appointments:
The President appoints the Chief Justice of India (CJI) and other judges of the Supreme Court and High Courts.
Advisory Role:
The President can seek the advice of the Supreme Court under Article 143 on matters of law or fact.
Pardoning Powers (Article 72):
The President has the power to grant:
Pardon: Completely absolving the offender from all punishment.
Reprieve: Temporary stay on the execution of a sentence.
Respite: Reducing punishment on special grounds (e.g., physical disability, pregnancy).
Remission: Reducing the sentence without altering its nature.
Commutation: Substituting one form of punishment with a lighter one.
Applicability:
Cases tried by court martial.
Offenses under laws where Union executive power extends.
Death sentence cases.
Significance:
Pardoning powers aim to correct possible judicial errors.
This is an executive power independent of the judiciary. Courts cannot interfere or compel the President in exercising these powers.
The President exercises this power on the advice of the Union Government.
Military Powers of the President of India
Supreme Commander:
The President is the Supreme Commander of the Armed Forces (Article 53).
Appoints the Chiefs of the Army, Navy, and Air Force.
War and Peace:
The President can declare war or conclude peace, subject to Parliament’s approval.
Diplomatic Powers of the President of India
International Representation:
The President represents India in international forums and diplomatic relations.
Ambassadors and Diplomats:
Sends and receives ambassadors and other diplomatic representatives.
Treaties and Agreements:
All treaties and international agreements are negotiated and concluded in the President’s name.
These are subject to Parliament’s approval.
Conclusion
The President of India, as the Constitutional Head, exercises wide-ranging powers across the executive, judicial, military, and diplomatic domains. However, these powers are exercised on the advice of the Council of Ministers, reflecting the parliamentary system of governance. The President’s authority ensures the smooth functioning of the nation while maintaining constitutional checks and balances.
National Emergency in India
A National Emergency is a constitutional provision under Article 352 of the Indian Constitution, which allows the President to proclaim an emergency in the country or a part thereof under specific conditions.
Grounds for Proclamation
War: When the country faces a declared war.
External Aggression: In case of an armed attack or threat from a foreign nation.
Armed Rebellion: Replacing the term “internal disturbance,” this was introduced by the 44th Constitutional Amendment Act (1978) to limit the misuse of emergency powers.
Procedure for Proclamation
Written Recommendation:
The President can proclaim an emergency only after receiving a written recommendation from the Union Cabinet.
Parliamentary Approval:
The proclamation must be approved by both Houses of Parliament within one month.
If approved, the emergency continues for six months.
It can be extended indefinitely with Parliament’s approval every six months.
Revocation:
The emergency can be revoked by the President at any time.
If at least 1/10th of the total members of the Lok Sabha give a written notice for disapproval of the emergency, a special session must be convened to discuss and vote on the matter.
Instances of National Emergency
1962: Due to the India-China war.
1971: During the India-Pakistan war.
1975: Declared by Indira Gandhi on the grounds of “internal disturbance.”
Effects of National Emergency
Executive Powers:
The President can issue directions to states on how their executive power should be exercised.
Legislative Powers:
Parliament gains the authority to make laws on subjects from the State List.
Laws made under emergency conditions remain effective for six months after the emergency ends.
Financial Powers:
The President can modify the distribution of financial resources between the Union and the states.
Fundamental Rights:
Suspension:
Articles 19 (six freedoms) are suspended only in cases of external emergency (war or external aggression), not in armed rebellion.
Articles 20 (protection in respect of conviction for offenses) and 21 (right to life and personal liberty) cannot be suspended.
Other Fundamental Rights can be restricted during an emergency.
Extension of Lok Sabha Tenure:
The President can extend the tenure of the Lok Sabha and State Legislative Assemblies by one year at a time, but not beyond six months after the emergency ends.
Imminent Danger:
Emergency can be proclaimed even in cases of imminent danger, without waiting for the actual occurrence of war, aggression, or rebellion.
Key Safeguards
Judicial Review:
The 44th Amendment ensures that the President’s decision to proclaim an emergency is subject to judicial review.
Restrictions on Misuse:
The term “armed rebellion” replaces “internal disturbance” to avoid ambiguity and potential misuse.
Significance of National Emergency
It provides the Union government with extraordinary powers to safeguard the sovereignty, integrity, and security of the country during crises.
However, it comes with the potential for misuse, as seen during the 1975 emergency, leading to stronger safeguards introduced later.
This mechanism ensures a balance between national security and constitutional safeguards, while addressing extraordinary circumstances with enhanced governmental powers.
National Emergency in India
A National Emergency is a constitutional provision under Article 352 of the Indian Constitution. It empowers the President to proclaim an emergency to address extraordinary situations threatening the nation’s security and integrity.
Grounds for Proclamation
The President can proclaim a National Emergency on the following grounds:
War: Declared war involving the country.
External Aggression: Armed attack or invasion by a foreign nation.
Armed Rebellion: Introduced by the 44th Constitutional Amendment Act (1978), replacing the term “internal disturbance” to restrict misuse of the provision.
Procedure for Proclamation
Cabinet Recommendation:
The President can only proclaim an emergency upon receiving a written recommendation from the Union Cabinet.
Parliamentary Approval:
The proclamation must be approved by both Houses of Parliament within one month.
If approved, the emergency lasts for six months and can be extended indefinitely, provided Parliament approves it every six months.
Revocation:
The President can revoke the emergency at any time.
If 1/10th of Lok Sabha members sign a written notice to disapprove the continuation of the emergency, a special sitting must be convened within 14 days for discussion and voting.
Historical Instances
National Emergency has been proclaimed three times in India:
1962: Due to the India-China war.
1971: During the India-Pakistan war.
1975: Declared by Prime Minister Indira Gandhi on the grounds of internal disturbance.
Effects of National Emergency
Executive Powers
The President can issue directions to states regarding how their executive powers should be exercised.
Legislative Powers
Parliament gains authority to make laws on State List subjects.
These laws remain effective during the emergency and cease to operate six months after the emergency ends unless revalidated.
Financial Powers
The pattern of distribution of financial resources between the Union and States can be altered.
Fundamental Rights
Suspension of Rights:
Articles 19 (six freedoms) can be suspended during an external emergency (war or aggression) but not during an internal emergency (armed rebellion).
Articles 20 (protection in conviction for offenses) and 21 (right to life and personal liberty) cannot be suspended.
Right to Constitutional Remedies under Article 32 is also suspended during a National Emergency.
Tenure of Legislature
The Lok Sabha’s tenure can be extended by one year at a time during the emergency but cannot continue beyond six months after the emergency ends.
Key Provisions and Safeguards
Imminent Danger:
The emergency can be proclaimed even if there is imminent danger of war, aggression, or armed rebellion. Actual occurrence is not necessary.
Judicial Review:
The Minerva Mills Case (1980) held that the proclamation of emergency under Article 352 is subject to judicial review.
The courts can examine whether the constitutional provisions and limitations were followed.
Malafide Intention:
The President’s satisfaction can be challenged in court on grounds of malafide intention.
Parliamentary Control:
Parliament must approve and periodically review the continuation of the emergency, providing a democratic check.
Role of Lok Sabha Members:
A notice signed by at least 1/10th of Lok Sabha members expressing intent to disapprove the emergency can initiate a special sitting.
Significance of National Emergency
It centralizes power to manage threats to national security effectively.
Ensures legislative and executive flexibility during crises.
However, its misuse during the 1975 Emergency highlighted the need for safeguards, leading to stricter controls introduced by the 44th Amendment.
This provision balances the need for extraordinary measures in times of crisis with the principles of democracy and constitutionalism.
State Emergency (President’s Rule)
A State Emergency, also referred to as President’s Rule, is a constitutional mechanism under Article 356 of the Indian Constitution. It allows the Union government to take direct control of a state when its governance cannot function in accordance with constitutional provisions.
Grounds for Proclamation
Failure of Constitutional Machinery (Article 356):
When the President is satisfied that the governance of a state cannot be carried out according to the provisions of the Constitution.
This could be based on a Governor’s report or other information available to the President.
Non-compliance with Union Directions (Article 365):
When a state fails to comply with the directions issued by the Union government.
Procedure and Duration
Approval by Parliament:
The proclamation must be approved by both Houses of Parliament within two months.
If approved, it remains in force for six months.
Extension:
The emergency can be extended for a maximum period of three years with parliamentary approval every six months.
Beyond one year, the following two conditions must be met for further extensions:
A National Emergency should be in force in the entire country or the concerned state.
The Election Commission certifies that general elections in the state cannot be held due to difficulties.
Extraordinary Powers of the President
During President’s Rule, the President acquires the following powers:
Control of State Functions:
The President can assume all or any of the functions of the state government and exercise the powers of the Governor.
State Legislature Powers Exercised by Parliament:
The state legislature’s powers are transferred to Parliament.
Budget and Expenditure:
The President can authorize expenditure from the State Consolidated Fund pending parliamentary approval.
Ordinance-making Power:
The President can promulgate ordinances for the administration of the state when Parliament is not in session.
Impact on State Administration
The state council of ministers and the Chief Minister are dismissed.
The state legislature is either dissolved or kept under suspension.
The Governor, acting on behalf of the President, manages the administration with the help of advisors appointed by the President.
However, the President cannot:
Assume the powers of the High Court.
Suspend the operation of any provision relating to the High Court.
Judicial Review
In the S.R. Bommai vs Union of India (1994) case, the Supreme Court ruled that the President’s satisfaction for imposing Article 356 is subject to judicial review.
The Court can examine whether the proclamation was based on relevant facts and was not arbitrary or politically motivated.
Historical Instances
The first proclamation of President’s Rule was in Punjab (1951), followed by:
PEPSU (1953)
Andhra Pradesh (1954)
Since then, it has been imposed several times across various states.
Significance of State Emergency
Ensures constitutional governance in states during crises.
Provides a mechanism to address political instability, breakdown of law and order, or failure of state administration.
However, its misuse for political reasons has been a concern, prompting judicial safeguards and stricter conditions for its application.
The provision aims to balance the need for federal intervention with the principles of democracy and federalism enshrined in the Constitution.
Financial Emergency (Article 360)
A Financial Emergency can be proclaimed by the President when the financial stability or credit of India, or any part of it, is under threat. It is a rare and extraordinary provision under the Indian Constitution.
Key Provisions
Proclamation and Approval:
The proclamation must be approved by both Houses of Parliament within two months.
Once approved, it remains in force until revoked by the President.
Powers Acquired by the President:
During a financial emergency, the President gains the following powers:
Directs states to observe financial propriety in their expenditures.
Requires that all Money Bills and other financial bills passed by state legislatures be reserved for his consideration.
Issues directions to reduce salaries and allowances of:
Union and state employees.
Judges of the Supreme Court and High Courts.
Instances of Financial Emergency
No financial emergency has been declared in India to date.
This demonstrates the country’s economic resilience despite challenges.
Miscellaneous Powers/Residuary Powers
The President also holds additional powers:
Rules and Regulations:
Can make rules on matters not explicitly mentioned in the Constitution.
Union Territories:
Final legislative authority for all Union Territories except Puducherry and Delhi.
Scheduled Areas and Tribes:
Special powers to govern and legislate for Scheduled Areas, Tribes, and Tribal Areas.
Ordinance-Making Power of the President (Article 123)
The President’s Ordinance-making power is an important legislative tool to address emergencies when Parliament is not in session.
Key Features
When Issued:
The President can issue ordinances only when both Houses of Parliament are not in session.
The President must be satisfied that immediate action is necessary.
Advisory Role:
This power is exercised on the advice of the Council of Ministers and is not for the President’s individual satisfaction.
Force of Law:
Ordinances have the same effect as an Act of Parliament.
They can be retrospective and may amend or repeal existing laws or ordinances.
Parliamentary Approval:
Ordinances must be placed before both Houses of Parliament.
They cease to operate six weeks after Parliament reassembles unless explicitly disapproved earlier.
If the two Houses reassemble on different dates, the six weeks are counted from the later date.
Limitations:
Ordinances cannot:
Exceed the legislative competence of Parliament.
Violate fundamental rights.
Judicial review is possible to check for malafide intentions.
Historical Context
The ordinance-making power is a relic of the Government of India Act, 1935.
Both the President (Article 123) and the Governors (Article 213) possess ordinance-making powers, which act as complementary provisions.
Significance of Ordinance Power
Ensures legislative continuity during emergencies.
Provides flexibility to the executive to address urgent situations.
However, the frequent use of ordinances may bypass the legislative process, raising concerns about executive overreach.
This provision reflects the balance between executive efficiency and parliamentary accountability within India’s democratic framework.
