This article has been written by Sathya Sruthi, currently in her 4th year pursuing BBA LLB in Symbiosis Law School Hyderabad.
ABSTRACT:
The president is considered the highest position holder of any country. The president plays a significant role in the Union Executive. Though the president is to be called the Country head, they hold a ceremonial role compared to the Prime Minister and other heads of the state. The president is elected through an indirect election in the form of an electoral college that consists of the elected members of both parliament and the Legislative Assemblies of the States of Puducherry and Delhi. The president embodies the national guardian, and its functions are t enshrined under the Constitution. The president has extensive powers and functions from Executive land legislative to judicial and administrative control. The president’s role seems more obligative. It’s more prominent during extraordinary situations in India, like emergencies, internal war, and external aggression. The President of India ensures constitutional balance, preventing, taking appropriate measures, and checking during political tiffs and convicts’ lives at this constitutional head’s mercy.
Keywords: Union Executive, Parliament, Constitution, Emergency, Judicial, Administrative
INTRODUCTION
The president is part of the Executive Organs of the state. The first part of the executive branch is the President of India. The President of India is considered the head of the Executive. The President of India also holds the privilege as the first citizen of India. Part V of the Indian Constitution, starting from Articles 52 to 62, talks about the President of India, which will be dealt with below. The President of India represents the state’s sovereignty while acting within the framework of parliamentary democracy. The makers of the Constitution were very cautious in not granting arbitrary power to any position holder in any three wings of the Constitution. This rule applies to the president as the powers and functions to be exercised by the President have to be based on consultation with the Prime Minister and the Council of Ministers’ advice. The President also plays a significant role as an upholder of the Constitution in ensuring that governmental actions are performed according to the provisions. The role and position of the President of India will ensure smooth operation between the Council of Ministers and Prime Minister, resulting in collective responsibility. The president’s discretionary powers are given in the emergency stance, granting pardon or remission for life convicts, making him a significant perfor the state. In toto, the President holds ceremonial duties, such as representing India in international affairs, receiving diplomats, and acting as a guardian of the Constitution and democratic governance.
ARTICLES GOVERNING THE PRESIDENT:
• Article 52– There shall be a president of India
• Article 54- The Election of the President happens through an electoral college, which is an indirect election process that consists of elected members of both the Houses of Parliament, i.e. Lok Sabha and Rajya Sabha, and members who are elected to the Legislative Assemblies of the State, i.e. MLA’s (including Union territories of Delhi and Puducherry).
• Article 55– Manner of Election of President, which ensures a uniform representation is granted to all states in the presidential election, and the votes in terms of the state legislative assembly are based on the population of those states and calculated accordingly in terms of parliament. The presidential election is based on proportional representation and a single transferable vote system, which ensures a balanced voting system. The other voting system includes secret ballot voting for confidentiality when choosing the constitutional head of the state. The basic concept of a person who wins the majority is to be elected as the president of India.
• Article 56– The term of office is five years, and the additional clauses state that the president can resign by handing in his resignation letter to the Vice President and be impeached for violation of the Constitution under Article 61. The president holds office until the successor to his position assumes office.
• Article 57– Eligibility for Re-election, which states, as per the provisions laid down, can be eligible for re-election, one who has held or holds the office of president.
• Article 58– Qualifications for President lays down that the candidate must be an Indian citizen who is at least 35 years old and eligible for the House of People and cannot be eligible if he holds any other office of profit, i.e. under the Government of India and other local authorities under it.
• Article 59– Conditions of the President’s office that include that he should not be a member of Parliament or State Legislatures, nor should he hold any office or profit nor any privileges, and they are entitled to their official residences as well as compensations which will not be reduced during their tenure.
• Article 60- Oath or Affirmation by the President that ensures a mandatory obligation to take oath before assuming the office and position in the presence of the Chief Justice of India.
• Article 61 – Impeachment of President, where the procedure has been laid down while the president violated the Constitution. The charges could be initiated from the House Sabha or Rajya Sabha with a two-thirds majority being a condition attached and 14 days’ notice to the person to be impeached. The other house than the one that initiated the charge will carry out the investigation, and the president will have a chance to defend himself if the two-thirds majority resolution prevails. Impeachment is carried out, and then removed from office .
• Article 62 – Time of Holding till vacancy expires. Term of office to fill a casual vacancy that mandates that the Presidential election must happen even before the term of office of president expires, and in case the vacancy arises due to death, resignation or removal, it is to be filled within six months of the provision laid down to fill the vacancy.
POWERS AND FUNCTIONS OF THE PRESIDENT
The President of India has extensive powers granted, including executive, diplomatic, legislative, judicial, military par, doing power, etc.
Executive Powers
As mentioned above, Article 53 talks about the executive power of the Union that includes:
- The appointment of the Prime Minister and Council of Ministers
- Appointment of Supreme and High Court Judges Appointment of State Governor, Comptroller and Auditor General (C.A.G.), Attorney General (AG), Chief Commissioner and members of the Election Commission of India
- Right to be informed about national affairs of statute
- They also have the power to remove the State Governors and the AG and Council of Ministers.
- They also govern the Union Territories and appointment of Lieutenant Governor and Chief Commissioner.
Military Powers:
As per Article 53 A, the president is considered the supreme commander of the Indian Armed Forces.
- Treaties and Contracts– All the significant treaties and contracts between nations are made in the name of the president
- Declaration of war – The declaration and conclusion of war on a peaceful note are all done by the president following the advice of the Council of Ministers and Prime Minister
- Appointment of military personnel– The president appoints all military officers and all the chiefs of armed forces, i.e. the Army, Navy, and Air Force.
- Court Martial Appointment, under Article 72, has been given the authority to pardon, commute, and remit sentences of the convicts or sentenced to death sentences by court-martial.
- The pardoning power comes under the Judicial power of a President. The president plays a very significant role as pardoning power extends to those punishments committed against Union Law.
- The check on this power is that it has to be exercised on the aid and advice of the Council of Ministers, yet there are no specific rules that the president has to follow while granting power, remission, reprieve or respite to the convict.
- In the case of Maru Ram v. Union of India, where the issue of Pardoning power under Article 72 will be under the scope of judicial review, the Supreme Court held that they aren’t subjected to judicial review entirely yet have to comply according to the advice of Council of Ministers (CoM).
Legislative Powers:
The legislative powers of the President would consider:
- The President can summon or discontinue parliament and has the power to dissolve the Lok Sabha.
- The President can also call for a joint session for both Lok Sabha and Rajya Sabha, over which the Speaker will preside. The president addresses the first session after each general election.
- The President appoints Speaker, Deputy Speaker and Chairman of both houses of parliament.
- The President also decides on the disqualifications of the Member of Parliament in consultation with the Election Commission.
- The bills of expenditure or State bills, except for financial bills, require the approval of the President and also grant his assent or withhold or return except for money bills, and that too has to be re-passed in the parliament
- The President can issue ordinances when the parliament is not in session and they must be approved within six weeks.
- The president presents the critical reports of the Comptroller and Auditor General, Union Public Service Commission and Finance Commission to Parliament.
- The President only enacts laws for Union territories if the assembly suspends or dissolves.
Financial Powers:
- The President controls the Contingency Fund of India, which meets unforeseen expenses during floods, drought, or natural and man-made calamities.
- The President gives his recommendation beforehand while introducing the money and financial bill to parliament, which is a mandatory task.
- The president’s recommendation is also significant in addressing the demand for grants and subsidies. The president constitutes the Finance Commission, which happens every five years. The critical reports of C.A.G. and A.G. relating to the accounts of the Government of India and the Finance Commission’s recommendations are submitted before the president for his approval.
Ordinance Making Powers
- The ordinance-making power of the president is guaranteed under Article 123 of the Indian Constitution.
- The ordinance is an authoritative order that can be initiated by the President immediately, even if neither the House of Parliament is in session.
- An ordinance is no less than an act or law of the parliament
- It has attached conditions like mandatorily to be presented before both houses for reconvening for approval and ceasing to operate after six weeks of enactment.
- The President has to ensure that approval of houses is required, and if disapproval of both houses of parliament is not granted, it expires at that moment.
- The President can withdraw the ordinance at any point and must ensure it complies with all the provisions and rules of the Constitution, or it could be declared void.
Discretionary Powers
- The president appoints the Prime Minister when there is no party of majority and also during the vacancy for the office of PM due to death or incumbency .
- The president can dissolve the Lok Sabha on the advice of the CoM when there is no majority or no confidence vote
- The president can take the advice of the CoM for reconsideration under Article 74 of the Constitution.
- The president also has the right to be informed of state affairs by the Prime Minister under Article 78 of the Constitution borrowed from England’s constitution .
- The president can also exercise his pocket veto power when necessary.
Emergency Powers
- The President of India can exercise his powers in all three types of emergency under Article 352,
- National Emergency -This is declared during external aggression or internal armed rebellion where the president’s rule is stated but can be done only after consultation of the Prime Minister and the Council of Ministers
- State Emergency – That is declared when there is a constitutional breakdown in the state under Governors rule presided by the president’s order
- Financial Emergency – Declared when financial instability is at threat and leads to decision-making power in the hands of the president in handling the state expenditures under Article 360.
- This situation occurred only once in India when President Fakhruddin Ali Ahmed proclaimed a National Emergency in 1975 on the advice of then Prime Minister Indira Gandhi
CASE LAWS
Minerva Mills v. Union of India
In this case, the Supreme Court ruled that the proclamation of National Emergency under Article 356 can be challenged under the grounds of dissembling intent or if the emergency imposed is made on extraneous or irrelevant grounds after the 42nd Constitutional Amendment Act of 1976 that limits the power to declare emergency.
Rameshwar Prasad v. Union of India
Where, the main issue in the case was the abuse of power by the Governor by recommending the presidential rule in Bihar and whether such acts come under the purview of Judicial review and the Supreme Court held that such actions and implementations are subjected to Judicial review but failed to answer the immunity and arbitrary power granted to Governor.
S.R Bommai v. U.O.I.
The question of the president’s rule and the extent was challenged. The Supreme Court held that the president must declare such serious measures only at the relevant time, and a declaration of
emergency on irrelevant and extraneous grounds will be declared void. Such imposition will also be subjected to judicial review was held. The court also iterated that the dissolving could happen after parliament approved such a proclamation, and the president could suspend the assembly. Therefore, the court declared that the President’s power under Article 356 shall be used under exceptional circumstances and not otherwise.
Samsher Singh v. State of Punjab
The Supreme Court held that the President and the Governor are just constitutional heads, power being a formal one, and have to exercise their powers and duties only with the aid and advice of the Prime Minister and council of Ministers based upon the circumstances and provisions laid under Constitution as we follow the British model of Parliamentary system.
ANALYSIS OF CASE LAWS:
The analysis of these cases reveals the legal trends and principles such as:
• Constitutional Checks and Balance: The courts reinforced how the role of the President in the Indian Constitutional framework is limited and accountable as a way of checking and balancing arbitrariness.
• Subjected to Judicial Review: The courts have emphasized over time and again that the discretionary usage of the powers of the President will be subjected to Judicial Review.
• Protection of Democracy: The courts also have recognised the exercising of the powers under Article 356 by the president to protect democracy and federalism
• Powers exercised with the advice of CoM: The courts laid down the rule of how the President and Governor should act in accordance with the advice of the Council of Ministers while acting as constitutional heads.
• President’s rule challengeable: The courts have held that the President’s rule can be challenged and subjected to judicial review and can be invoked in case of exceptional circumstances and not otherwise.
CONCLUSION
Therefore, The President is very significant and is granted crucial powers and functions to maintain the democratic framework. As a constitutional head of state, he embodies the integrity of the state. He has to comply with the Constitution for the smooth functioning of the legislative; the Nation’s executive and judiciary wings are extended to discretionary powers, including the executive, diplomatic, military, judicial, emergency and other powers, yet is to act on the aid and advice of the Council of Ministers. The president also ensures a constitutional check and balance in the cabinet system. The dignitary task of appointing the Prime Minister, Chief Election Commissioner, and the High Court and Supreme Court judges is vested with the president. The president also has other functions, such as dissolving the parliament, assenting bills, and pardoning convicts. The president also has the power to declare an emergency based on the turmoil and exceptional circumstances due to financial and national instability. Therefore, the President’s role is crucial in maintaining the houses of parliament, prime minister and council of ministers as well as instability so that a democratic framework is upheld
- REFERENCES
https://www.drishtiias.com/mains-practice-question/question-8120
https://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-16.htm
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https://www.jstor.org/stable/44782500.
https://prepp.in/news/e-492-powers-and-functions-of-the-president-indian-polity-upsc-notes#financial
https://prepp.in/news/e-492-powers-and-functions-of-the-president-indian-polity-upsc-notes#financial
https://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Powers_and_Functions_of_President_in_India.pdf
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https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1151&context=nlsir
