THE PRESIDENT OF INDIAN UNION

At the head of the Union Executive stands the President of India. The executive power of the Union including the Supreme command of Defence Forces is vested in him. But the executive power of the Union vested in the President must be exercised in accordance with the Constitution and the Constitution prescribes that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions (Article 74).

Qualifications : In order to be qualified for election

as President, a person must

(a) be a citizen of India;

(b) have completed the age of 35 years;

(c) be qualified for election as a member of the

House of the People; and

(d) must not hold any office of profit under the Government of India or the Government of any State or under any local or any other authority, subject to the control of any of the

said Governments (Article. 58).

Election of the President: The President of India is indirectly elected through an electoral college consisting of (a) the elected members of both the Houses of

Parliament; and (b) the elected members of the Legislative Assemblies of the State.

The election takes place on the basis of proportional representation by means of the single transferable vote system. The voting is done by secret ballot. For ensuring uniformity in the scale of representation of different States at the elction of the President the formula used is as follows :

Population of State+100 Elected Members of the State Legislative Assembly

=No. of votes which each Member of State Legislative Assembly is entitled to cast..

The Constitution also says that parity shall also be maintained between the States as a whole and the Union. This condition is secured by the following formula:

Total number of votes of all the Legislative Assemblies

Total number of elected members of both Houses of Parliament = No. of votes which each elected member of Parliament is entiled to cast.

Terms of Office : The President holds office for a term of five years from the date on which he enters upon his office. However, this term may be cut short if he resigns from office before the expiry of five years by writing addressed to the Vice-President; or if he is removed from office through impeachment on grounds of violation of the Constitution. Similarly, his term stands automatically extended beyond the expiry date if his successor is not elected or does not assume office.

Under the Constitution, the President is eligible for re-election. Here it may be noted that the Constitution of U.S.A. imposes a ban on the re-election of the President for more than two full terms.

Impeachment of the President : The President of India can be removed from his office before the expiry of his normal term through the process of impeachment. He can be impeached only on grounds of violation of the Constitution.

An impeachment is a quasi-judicial procedure in Parliament. Either House may prefer the charge of violation of the Constitution before the other House which shall then either

investigate the charge itself or cause the charge to be investigated. But the charge cannot be preferred by a House unless —

(a) a resolution containing the proposal is moved after a 14 days’ notice in writing signed by not less than one-fourth of the total number of members of that House; and

(b) the resolution is then passed by a majority of not less than two-thirds of the total

membership of the House.

The President shall have the right to appear and to be represented at such investigation. If, as a result of the investigation, a resolution is passed by not less than two-thirds of the total membership of the House before which the charge has been preferred declaring that it sustained,such resolution shall have the effect of removing the President from his office with effect from the date on which such resolution is passed.

Vacancy in the Office of the President: If the office of the President falls vacant due to death, resignation or removal of the President, fresh elections must be held within six months of the occurrence of the vacancy. The person elected to fill the vacancy is entitled to hold the office for the full term of five years from the date on which he enters upon his office. During the interval between the date of vacancy and the date when the new President assumes office, the Vice- President of India acts as the President.

Similarly, if” the President is unable to discharge his functions owing to absence, illness or any other reason, the Vice-President discharges his functions until the date on which the President resumes his duties.

While the Vice-President acts as the President or discharges the functions of President, he enjoys all the powers and immunities of the President and is entitled to such emoluments, allowances and privileges as are enjoyed by the President.

It may be noted that if per chance the Vice-President is not available to discharge the duties of the President, the Chief Justice of India and in his absence the senior-most judge of the Supreme Court acts as President.

The Constitution of India provides for a Parliamentary Systemof Government in which the formal executive power of the Union is vested in the President. The ‘executive power’ primarily means the execution of the laws enacted by the Legislature. The executive power may, in short, be defined as ‘the power of carrying on the business of Government’ or ‘the administration of the affairs of the State’, excepting functions which are vested by the Constitution in any other authority. The ambit of the executive power has been explained by the Supreme Court as “the residue of Governmental functions that remain after legislative and judicial functions are taken away.”

The President of India enjoys vast administrative, legislative and various other powers.

However, the President exercises his executive powers under various Constitutional

limitations. The limitations may be, briefly, mentioned as follows :

(1) The Constitution explicitly requires that Ministers other than the Prime Minister

can be appointed by the President only on the advice of the Prime Minister.

(2) According to Article 74(1) the executive powers shall be exercised by the

President of India in accordance with the advice of the Council of Ministers.

Prior to 1976 there was no express provision in the Constitution that the President was bound to act in accordance with the advice tendered by the Council of Ministers. It was judicially established that the President of India was not a real executive, but a Constitutional head, who was bound to act according to the advice of Ministers, so long as they commanded the confidence of the majority in the House of People.

Refusal to act according to the advice given to the President by the Council of Ministers, headed by the Prime Minister, will render the President liable to impeachment.

The various powers included within the comprehensive expression ‘executive power’ can be classified under the following heads :

Administrative Powers : In the matter of administration, the Indian President is not a real head of the executive like the American President. However, though the various Departments of Government of the Union will be under the control and responsibility of the respective Ministers in charge, the President will remain the formal head of the administration. And so, all executive action of the Union is expected to be taken in the name of the President. All contracts and assurances of property made on behalf of the Government of India is expected to be made by the President and executed in the manner as per the direction of the President.

Again, though he may not be the ‘real’ head of the administration, all officers of the Union are considered to be his subordinates and the President has a right to be informed of the affairs of the Union.

The President’s administrative power includes the power to appoint and remove the high dignitaries of the State like the Prime Minister and other Ministers of the Union, the Attorney-

General, the Comptroller and Auditor-General and so on.

However, the Indian Constitution does not vest in the President any absolute power to appoint inferior officers of the Union as is to be found in the American Constitution. The Indian Constitution, thus, seeks to avoid the undesirable ‘spoils system’ of America under which about twenty per cent of the federal civil officers are filled in by the President without consulting the Civil Service Commission.

In the matter of removal of civil servants (who are serving under the Union and hold office during the President’s pleasure), the Constitution has provided certain conditions and procedures subject to which only the President’s pleasure may be exercised, (Article 311(2)).

Military Powers : The Supreme command of the Defence Forces is vested in the President of India, but the Constitution expressly lays down that the exercise of this power shall be regulated by law.

Diplomatic Powers : The President represents the nation in international affairs, appoints Indian representatives to other countries; receives diplomatic representatives of other States; and has the power of making treaties and implementing them, subject, of course, to ratification by Parliament.

Legislative Powers : Like the Crown of England, the President of India is a component part of

the Union Parliament. The legislative powers of the President, to be exercised according to

Ministerial advice, includes —

(i) Summoning, prorogation of both Houses of Parliament, and dissolution of the lower

House.

(ii) The right to address and to send messages to either House of Parliament either in regard

to any pending Bill or to any other matter.

(iii) Nomination of members to the Houses. The President nominates 12 members to the

Council of States from persons having special knowledge or practical experience in the

fields of literature, science, art and social service. He is also empowered to nominate not

more than two members to the House of People from the Anglo-Indian community, if he

is of opinion that the Anglo-Indian community is not adequately represented in that

House.

(iv) Laying reports, etc. before Parliament like the budget, report of the Auditor-General

relating to the accounts of the Government of India, recommendations of the Finance

Commission, reports of the UPSC, the Special Officer for SCs and STs, Commission

on backward classes, the Special Officer for linguistic minorities etc.

(v) Previous sanction of legislation relating to formation of new States or the alteration of

boundaries, a Money Bill, a bill involving expenditure from the Consolidated Fund of

India, a bill affecting taxation in which States are interested or affecting the principles

laid down for distributing moneys to the States and so on.

(vi) Assent to legislation and veto.

(vii) Disallowance of State legislation : There is no provision in the Constitution of

India for a direct disallowance of State legislation by the President, but there is

provision for disallowance of such bills as are reserved by the State Governor for the

assent of the President. The President may also direct the Governor to return the Bill to

the State Legislature for reconsideration; if the Legislature again passes the Bill by an

ordinary majority, the Bill shall be presented again to the President for his

reconsideration. But if he refuses his assent again, the Bill fails.

(viii) Ordinance-making power : The President enjoys the power to legislate by ordinance when Parliamentary enactment on the subject is not possible. An ordinance may relate to any subject in respect of which Parliament has the right to legislate and is subject to the same limitations as legislation by Parliament. Thus, an ordinance cannot contravene the Fundamental Rights any more than an Act of Parliament.

The ordinance must be laid before Parliament when it reassembles, and shall automatically cease to have effect at the expiration of six weeks from the date of re-assembly unless disapproved earlier by Parliament.

Judicial Powers, : Article 72( 1) of the Constitution of India states that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.

Emergency Powers : The President has extraordinary powers to deal with emergencies. He is given the power to make a proclamation of emergency on the ground of threat to the security of India or any part thereof, by war, external aggression or armed rebellion. He also has the power to make a proclamation that the Government of a State cannot be carried on in accordance with the provisions of the Constitution (i.e., breakdown of Constitutional machinery).

The President is empowered to declare that a situation has arisen whereby the financial stability or credit of India or of any part thereof is threatened (Article 360).

Discretionary Powers : There can be at least two situations in which the President may have to take a decision in his discretion, because the advice of the Ministers may not be available. Such a situation arose in 1979 after Morarji Desai’s resignation as Prime Minister. The President did not invite Jagjivan Ram. He accepted the advice of Charan Singh, and dissolved the Lok Sabha. The President took his action in his discretion.

There is no mention of the term ‘discretion’, in the Constitution, in connection with the powers of the President. However, eminent Constitutional experts like D.D. Basu, N.A. Palkhiwala,

T.K. Tope, H.M. Seervai and V.M. Tarkunde are of the opinion that like the Queen of England, the President of India has discretion in the appointment of Prime Minister, and dissolution of Lok Sabha. In normal times, the President acts according to well established customs.