President

The union executive consists of president, vice president, Prime Minister, Council of Ministers and  attorney general of India. 

Articles 52 to 78 in part V of the constitution deal with the union executive. 

The separation of organs of the state: India is a Democratic Republic. in a Republic, the head of the state is democratically elected. the president of India is the head of state of the Indian Republic. the theory of separation of powers divides the organs of the state into three parts –  

1. Legislature – it comprises of democratically elected representatives of the people and is the law making body of the state. Laws are made at the centre by parliament and at the state by state legislature 
2. Executive– it emerges out of the legislature that is parliament elects the executive out of its members. the laws made by the legislature are implemented by union executive at the centre and state executive in states 
3. Judiciary– it is a separate organ of the state. it is independent of the legislature and executive. it has the authority to adjudicate or enforce the laws. the judiciary at the union is Supreme Court, at the states it is high court end at the district level it is the subordinate courts. it keeps a check over the other organs and to keep the supremacy of the constitution. 

The Executive: 

• President is the head of the Indian state in whose name the executive powers are vested but who does not exercise them.  
• He is the first citizen of India and acts as a symbol of unity, integrity and solidarity of the nation. And occupies the first position under the warrant of precedence. 
• The Indian constitution, under article 53, vests the executive power of the union in the president, who shall exercise the executive power directly or through officers, subordinate to him in accordance with the constitution. he is the supreme commander of the armed forces. 
• All the executive actions are taken in his name. 
• the executive power vested in the president is to be exercised on the advice of the Council of Ministers, headed by Prime Minister responsible to the parliament. The 42nd constitutional amendment act made it obligatory on the part of the president to accept the advice of the Council of Ministers. 

Important articles related to the president: 

Election of the president: 

Article 54 of the Indian constitution deals with the election of the president – 

The president shall be elected by the members of an Electoral College consisting of: 

1. the elected members of both Houses of Parliament 
2. the elected members of the legislative assemblies of the state 
3. elected members of the union territories with legislative assembly – Delhi and Puducherry 

Who do not participate? 

• the nominated members of both Houses of Parliament, 
•  nominated members of state legislative assemblies,  
• both elected and nominated members of the state legislative councils and  
• the nominated members of the legislative assemblies of union territories that is Delhi and puducherry do not participate in the election of the president 
• Also where assembly is dissolved, the members ceased to be qualified to vote in presidential election, even if fresh elections to the dissolved assembly are not held before the presidential election 

Article 55 : manner of election of president 

Constitution talks about two principals here: Principle of uniformity and principle of parity 

1. Principle of uniformity: there shall be similarity in representation amongst or within the States and union territories 
2. principle of parity: there should be parity in representation or similarity between MP and MLA 

According to article 55, 

1. there shall be uniformity in the scale of representation of different states at the election of the president as well as parity between the states as a whole and the union. 
2. and for the purpose of achieving such uniformity, the number of votes which each elected member of parliament end of the legislative assembly of each state is entitled to cast at such election Shelby determined in the following manner: 

• the value of the vote of each member of the Electoral College, who is a member of a state legislative assembly, is calculated by dividing the population of the state by the total number of elected members of the assembly and then dividing the quotient by 1000. 

• Every elected member of either House of parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to members of the legislative assemblies of the states by the total number of the elected members of both the Houses of Parliament 

       3. The election of the president shall be held in accordance with the system of proportional representation by                 means of the single transferable vote and the voting at such election shall be by secret ballot. 

• candidate to get elected to the office of president, must secure a fixed quota of votes. the quota of votes is determined by dividing the total number of valid votes polled by the number of candidates to be elected plus one and adding one to the quotient: 

• In the election to the president, the wood value is minimum for an MLA from Sikkim, by the while the vote value of an MLA from UP is maximum. 
• The vote value of states should be equal to the total vote value of the union.  
• Vote value of each MLA varies from state to state. 

Counting of votes: 

• ballot paper is used for election of president. each member of the Electoral College is given only one ballot paper. The voter is required to indicate his preferences by marking 1,2,3,4 while casting his vote, against the names of candidates. 
• According to election rules 1974 at least one preference has to be given 

• In the first phase the first preference votes are counted and if a candidate secures the required quota, he’s declared elected. 
• if nobody secures the required quota then the process of transfer of votes is set in motion That is now single transferable vote is applied. a candidate with least votes is eliminated And his second preference votes are transferred to the first preference votes of other candidate. this process continues till a candidate secures the required quota. 

Important points: 

• Returning officer is responsible for the monitoring of the whole election process. 
• all doubts and disputes in connexion with election of the president are inquired into an decided by the Supreme Court whose decision is final. 
• The election of a person as president cannot be challenged on the ground that the Electoral College was incomplete. 
• the election of a person as president is declared the boy by the supreme quote then acts done by him before the date of such declaration of the Supreme Court at north invalidated and continue to remain in force. 

Why indirect election? 

• this is the most election for the president was criticised as going against the democratic idea of universal adult franchise. However, the constitution makers chose the indirect election of the president as direct election by the large population would cause great loss of time, energy and money, all of which would be disproportionate in the election of a nominal head of state. 
• Moreover, India has adopted a parliamentary system of government where the president is only a nominal executive and the real powers are vested in the councillor from listers headed by the Prime Minister. So it would be anomalous to have direct election of the president without vesting the real power in him. 

Qualifications for election as president : 

Article 58 lays down the qualifications which a person must process for being elected to the office of the president of India –  

1. He must be a citizen of India He must be a citizen of India 
2. He must have completed the age of 35 years 
3. he must be qualified for election as a member of the House of the people 
4. he must not hold any office of profit under the Government of India or the government of any state or under any local or other authority subject to the control of any of the said governments. 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 and hence qualified as a presidential candidate. 

Further, the nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Every candidate has to make a security deposit of Rs 15000 in the RBI, which is liable to be forfeited in case the candidate fails to secure one-sixth of the valid votes polled. 

Term of presidents office 

• According to article 56 the president shall hold office for a term of five years from the date on which he enters upon his office. 
• even after the expiry of his turn he shall continue in office until his successor enters upon his office. 
• the president may, however, resign his office before the expiry of his normal term of five years by writing to the vice president. 
• he may be removed from his office for violation of the constitution by the process of impeachment. 

Eligibility for re-election 

• A person who holds, or who has held office as President, shall be eligible for re-election as President. 

Conditions of presidents office 

Article 59 deals with the condition of presidents office. 

1. the president shall not be a member of either House of parliament or of a House of the legislature of any state , or if a member of either House of parliament or of a House of the legislature of any state, be elected president, he shall be deemed to have vacated his seat in that house on the date on which he enters upon his office as president. 
2. the president shall not hold any other office of profit 
3. he is entitled without payment of rent to the use of his official residence. he is also entitled to such emoluments and allowances and privileges as may be determined by parliament by law. 
4. The emoluments and allowances of the president cannot be diminished during his term of office. after retirement, the president is entitled to a pension of rupees 18 lack per annum. 

Oath or affirmation by the president :

Under Article 60, the president takes the oath in the presence of Chief Justice of the Supreme Court  

• To faithfully execute the office  
• to preserve, protect and defend the constitution and law. 
• To devote himself to the service and well-being of the people of India 

Impeachment of the president: 

• according to article 61, the president of India can be removed from his office before the expiry of his term by the process of impeachment only for the ‘violation of the constitution’. however the constitution does not define the meaning of the phrase violation of the constitution. 
• It can be initiated by either House of the parliament. these charges should be signed by 1/4th members of the house that framed the charges and a 14 day’s notice should be given to the president. 
• Such a resolution must be passed by a majority of not less than 2/3 of the total membership of the house. 
• then the other House of the parliament should investigate the charges. 
• the president has the right to appear and to be represented at such investigation to defend himself. 
• If the other house also sustains the charges and passes the impeachment resolution by a majority of 2/3 of total membership then the president stands removed from his office from the date on which the resolution is so passed. 

Who is involved in the process of impeachment? 

• normally good members of either House of parliament can participate in the process of impeachment, though they do not participate in the election of president 
• the elected members of the state legislative assemblies and the union territories of Delhi and puducherry do not participate in the impeachment process though they participate in  election of the president. 

Vacancy in the president’s office 

Vacancy in the office of president can be created due to any of the following conditions- 

1. expiry of the term, or 
2. Death, or 
3. Resignation, or 
4. impeachment of the president or 
5. Otherwise, such as when the election of the president is declared void by the Supreme Court or he becomes disqualified to hold the office anymore. 

• When vacancy is caused by expiration of the turn – An election to fill the vacancy must be held before the expiration of the term. in case of delay the president continues to hold office until the successor assumes charge. 
• if the office of the president falls vacant by resignation, death or otherwise, Then election to fill the vacancy should be held within six months from the date of the occurrence of such a vacancy. The newly elected president remains in office for a full term of five years from the date he assumes charge. 
• if the president is not able to discharge his duties due to sickness or absence due to any other reasons, the vice president discharges the functions of the president. when any person that is, vice president, Chief Justice of India or in his absence senior most judge of the Supreme Court is discharging the duties of the president, He enjoys all the powers and immunities as well as salary, allowances and privileges which are available to the president under the constitution. 

Powers and functions of the president of India 

Executive powers of President:

Article 53 declares, that the executive power of the union, shall be vested in the president and it shall be exercised by him, either directly or through officers subordinate to him but always in accordance with the constitution.The expression executive power is not defined in the constitution. The following are the executive powers and functions of the president: 

1. All executive actions of Government of India are formally taken in the name of the president of India. 
2. he can make rules specifying the manner in which the orders and other instruments made an executed in his name 
3. he can also make rules for more convenient transaction of business and allocation of said business among the ministers. 
4. he appoints the Prime Minister and other ministers and they hold office during the pleasure of the president. 
5. he appoints the attorney general of India and determines his remuneration who also holds office during the pleasure of the president. 
6. he also appoints the Comptroller and Auditor General of India, the chief election commissioner and other election commissioners, the chairman and members of the upsc, the governors of states, the chairman and members of finance Commission, and so on. 
7. he can seek any information relating to the administrative affairs of the union and proposals for legislation from the Prime Minister. 
8. he can require the Prime Minister to submit for consideration, any matter on which a decision has been taken by a minister but has not been considered by the council. 
9. he can appoint a Commission to investigate into conditions of SC’s, ST’s and other backward classes. 
10. he can appoint an inter State Council for the promotion of central state and Interstate cooperation 
11. he directly administers the union territories through administrators appointed by him. 
12. he can’t declare any area as scheduled area and has powers with respect to the administration of scheduled areas and tribal areas. 

 2. Legislative powers: The president is an integral part of the parliament and enjoys the following legislative powers: 

1. He summons or prorogues Parliament and dissolve the Lok Sabha
2. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock
3. He addresses the Indian Parliament at the commencement of the first session after every general election
4. He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya Sabha when the seats fall vacant
5. He nominates 12 members of the Rajya Sabha
6. He can nominate two members to the Lok Sabha from the Anglo-Indian Community
7. He consults the Election Commission of India on questions of disqualifications of MPs.
8. He recommends/ permits the introduction of certain types of bills
9. He promulgates ordinances
10. He lays the following reports before the Parliament:
    1. Comptroller and Auditor General
    2. Union Public Service Commission
    3. Finance Commission, etc.

1. To introduce the money bill, his prior recommendation is a must
2. He causes Union Budget to be laid before the Parliament
3. To make a demand for grants, his recommendation is a pre-requisite.
4. Contingency Fund of India is under his control.
5. He constitutes the Finance Commission every five years.

1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him
2. He takes advice from the Supreme Court, however, the advice is not binding on him
3. He has pardoning power: Under article 72, he has been conferred with power to grant pardon against punishment for an offence against union law, punishment by a martial court, or death sentence.

Note: Pardoning powers of the president includes the following types:

• Pardon with the grant of pardon convicts both conviction and sentence completely absolved
• Commutation  with this nature of the punishment of the convict can be changed
• Remission reduces the term of the imprisonment
• Respite  awards lesser punishment than original punishment by looking at the special condition of a convict
• Reprieve stays the execution of the awarded sentence for a temporary period

1. International Treaties and agreements that are approved by the Parliament are negotiated and concluded in his name
2. He is the representative of India in international forums and affairs

He is the commander of the defence forces of India. He appoints:

1. Chief of the Army
2. Chief of the Navy
3. Chief of the Air Force

He deals with three types of emergencies given in the Indian Constitution:

1. National Emergency (Article 352)
2. President’s Rule (Article 356 & 365)
3. Financial Emergency (Article 360)

Veto Powers of the President

Ordinance Making Power of the President:

Under Article 123, the ordinances that are promulgated and an Act of the Parliament both have the same force and effect, but every such ordinance-

1. Shall we lay before the Parliament and shall cease to operate after the six weeks from the reassembly of the Parliament?
2. The ordinance may be withdrawn by the President at any time.

The Article 123 of the Indian Constitution states that:

• If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
• An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance –
  • shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, of before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
  • may be withdrawn at any time by the President. ( Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.)
  • If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

Limitations of Ordinance Making Power of the President

The following are the limitations of the ordinance making power of the President:

• The President can only promulgate an Ordinance when either of the houses of the Parliament is not in session.
• The ordinance must be passed by the parliament within 6 weeks of the reassembling of the parliament if once an ordinance has been passed.
• Without the conviction of the President that there are circumstances that require immediate action, the President cannot issue the ordinance.
• The President can promulgate and withdraw an ordinance only on the advice of the Council of Ministers headed by the Prime Minister, that is, his power of Ordinance making is not discretionary.

Pardoning Power of the President:

• Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
• Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
• Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
• Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
• Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Difference between pardoning power of President and Governor:

Important facts:

• It is is exercised on the advice of the Council of Ministers
• The power is exercised, independent of the judiciary. therefore the president can examine the evidence  afresh and take a view different from the court. However, the president does not sit as a court of appeal. 
• neither the constitution nor any law provides for the guidelines which have to be followed by the president or the governor. 
• The petitioner for mercy has no right to an oral hearing by the president 
• The president is not bound to give reasons for his order. 
• if the earlier petition has been rejected by the president, stay cannot be obtained by filing another petition. the advice is given by the ministry of home.

Judicial review of pardoning powers: 

• Judicial review of pardoning powers is applicable on limited grounds as per Supreme Court in Epuru Sudhakar vs State of Andhra, 2006. 
• The grounds of review are as follows: 

1. if the order is passed without application of mind 
2. if the order is arbitrary 
3. if it is malafide 
4. if it is based on wholly irrelevant facts or based on facts extraneous to the case 

Discretionary powers of the president: 

Although the constitution after 42nd constitutional amendment act made it mandatory or obligated for the president to act on the advice of the Council of Ministers, even then the practise of parliamentary governance creates some circumstances when the president has to act as per his own wisdom, sense of justice and discretion. the situations where he has to act on his own discretion are: 

• Appointment of the Prime Minister under the situation when no single political party commands clear majority support of the Lok Sabha. 
• Appointing a Prime Minister in case of vacancy due to the sudden death of the incumbent, there there is no acknowledged leader due to the inability of the legislature party to do it or in case of absence of settled seniority among cabinet members and a name for the Prime Minister is proposed from the outside. 
• dissolution of Lok Sabha on the advice of Council of Ministers which has lost the support of majority members of Lok Sabha or against whom a vote of no confidence may have been passed. 
• dismissing ministries in case the Council of Ministers has lost the confidence of the house but refuses to resign. 
• under article 74 he can send advice of the Council of Ministers at his discretion back to it for its reconsideration. 
• under article 78 he enjoys the right to be informed about the affairs of the state by the Prime Minister. 
• he enjoys the right to warn or encourage the Council of Ministers. 
• he applies suspensive and pocket vetoes at his discretion. 

Under the above situations, the role of the president becomes significant, crucial and decisive because he has to act according to his own wisdom, Discretion and judgement. the president is faced with these kinds of the situation more often from 1990 onwards, with the emergence of coalition governments and minority governments. 

Immunity from executive actions: 

Article 61 gives personal immunity from legal actions to the president and the governors. these not only include the official acts of Commission and omission but also shield the acts done outside the provisions of constitution. any act purportedly done in pursuance of the provisions of the constitution is protected. The president and the governors are not answerable to any quote for the exercise of their powers. the personal immunity also extends to criminal proceedings against them, but it is available only during the term of his or her office. the personal immunity granted to the president and the governors does not prevent their official actions from a legal challenge. such actions are to be defended by the union or state government.