Chapter 20: PRESIDENT

Introduction

He is the head of the state and executive. The union executive consists of president, vice president, prime minister, council of ministers and attorney general. He is the first citizen of India.

 

Election of president:

Electoral College consisting of only elected members of both houses of the parliament, only elected members of legislative assembly [not any member of council] and elected members of legislative assemblies of UT's.

Members of dissolved legislative assemblies don’t participate in the Electoral College.

Presidential election is by proportional representation. All disputes of Electoral College are settled by Supreme Court only.

President election is declared invalid then the decisions made by him till that time remain valid.


Eligibility criteria for Presidential elections

Person to be eligible for president’s position he needs to have the following qualification:

  1. A citizen of India
  2. Qualified for election to be member of  Lok Sabha
  3. should be at least 35 yrs of age
  4. Should not hold any office of profit under a public authority in any union, state and local body in India.

 

Conditions for president’s office:

He should not be an MP / MLA in any house of centre or states and UT's. He must not hold an office of profit in India.

Privileges

President is immune from criminal proceedings from official or personal acts.

Civil proceeding with regards to personal acts can be launched after two months.

Legal liability on account of official actions is null.

However his official conduct can be reviewed by court, tribunal or body authorized by either house of parliament when proceeding for impeachment are being conducted.


Term of office

Term of office is 5 years. Re-election is allowed any number of times.

He can resign in writing to vice president. His term can be extended till re-elections are over and new candidate takes over.

President can be impeached if any house passes a resolution by majority of two third of the total membership of the house. Similarly in the other house too, such a bill when passed leads to impeachment of the president. Impeachment can be done on grounds of violation of the constitution.

Nominated MP's too can participate in the impeachment proceedings.

If the office of the president falls vacant due to death, illness, removal or otherwise then vice president acts as president. If vice president is also unable then Chief Justice of India or in his absence senior most judge of SC can act as president. Justice Hidayatullah was the only one to get such a chance.

 

Powers and functions:

All executive actions of state are taken in his name. Powers of the president have to be exercised with the advice of the PM + council of ministers [42nd amendment]; the 44th amendment gave the president power to advice the PM + council to reconsider the advice but if the same advice is made again he has to follow it.

He can make rules specifying which orders and instruments made and executed in his name shall be authenticated.

He can makes rules for more convenient transaction of business of union government and allocation of said business among ministers.

He appoints PM and council of ministers and the attorney general, they occupy office during his pleasure. He appoints CEC and EC’s, CAG, Chairman and members of UPSC + finance commission + governors of state + interstate councils + administrators of UT's.

He can declare scheduled areas and tribal areas and has powers of administration of these areas. He can appoint members of SC + ST+ Womens+ OBC+ Minorities commission + Officer of Linguistic minorities.

He appoints administrators to UT’s called chief commissioner, lieutenant governor or administrator.

 

Legislative powers of president include:

Dissolving Lok Sabha. Summoning and proroguing house of parliament.

Summon joint sitting of both houses to resolve deadlocks.

He can send messages to the House of parliament regarding bills or otherwise.

He can nominate 12 members to Rajya Sabha from fields of art, science, literature and social service.

He can nominate two members of Anglo Indian community to Lok Sabha if he feels community isn’t adequately represented.

He decides questions of disqualification of MP's after advice of EC which is binding.

Money bills and bill leading to alteration of boundaries of state or UT's needs his approval before they can be introduced in the house. 

He lays the reports of UPSC, EC, and CAG before the house of parliament.

Ordinance making powers:

He can promulgate ordinances when parliament [both houses or any one house] isn’t in session however such ordinances have to be laid before parliament within 6 weeks of its reassembly. Thus they are temporary laws. The president should be satisfied of the need to take immediate action. President’s satisfaction is subject to judicial review. 

Ordinance can be made only on Union list matters and Fundamental rights can’t be abridged by them.Constitutional amendments can’t be made by ordinance.

Ordinances can be made by him only on advice of PM + council of ministers. It can give retrospective effect or repeal a law or tax law or other ordinance too.

He can legislate by making regulations for Puducherry but only when its legislature isn’t in session or dissolved.


Misuse of Ordinance making powers: Enemy Property Ordinance, 2017

Ordinance making powers are a legacy from the Indian Council Act, 1861 which gave the executive power to circumvent the legislature in making a law. However the decision to pass the Enemy property ordinance for the fifth time after failing to get the law passed through parliament is a abuse of the powers. The ordinance was passed specifically to nullify a decision of the Supreme court. A special article was inserted to allow the current custodian of the enemy property to dispose it by sale notwithstanding any judgment on it. This allows the government from having to hand over property to original owners.

Article 123 of the constitution clearly specifies that ordinance making powers are an emergency resort but the executive has turned it into a parallel law making source. The ordinance also redefines "enemy subject" and includes in its purview "even legal heirs of the enemy subject". Thus even Indian born heirs of the original owners are kept away from their ancestral property. The Ordinance thus is in complete contravention of Right to Property of these people. This must be examined for legal validity by courts.

Veto Power:

A bill can become an act only if it has received president’s assent. When a bill is given to the president he can:

  1. Give his assent [compulsory for constitutional amendments]
  2. Take no action on bill of legislature / Pocket veto. [only for ordinary bills / money bills]
  3. Withhold his assent / Absolute veto  [only for ordinary bills / money bills]
  4. Return the bill for reconsideration / Suspensive veto. However if the bill is again passed by parliament then he has to give his assent to it. [ only for ordinary bills ]

Qualified veto i.e. legislature can override presidential decision to return bill by a higher majority than what passed the bill isn’t available in Indian system unlike USA.

Above powers are also applicable to bills reserved for his assent by the governor; However for such State bills he can return them for reconsideration any number of times.


Financial Powers:

Money bills can be introduced in house only after his assent.

He constitutes a finance commission after every five years.

He causes to be laid the annual financial statement before parliament.

No demand for grant can be made except on his recommendation.

He can make advances out of the contingency fund of India for meeting unforeseen circumstances.


Judicial Powers:

He appoints judges of SC and HC's.

He can grant pardon [remove sentence and conviction], remit [reduce sentence but not its character], reprieve [stay on execution for a temporary period], commute [substitute sentence with a lighter form] or respite [award lesser sentence due to special factors of convict] sentence of a convict sentenced under union law, court martial or sentenced to death under any law.

He can seek advice from the SC on any question of law or fact; such advice is not binding on him.


Diplomatic Powers:

He negotiates international treaties and agreements of India. However they are subject to the approval of parliament.


Military Powers:

He is the supreme commander of defence forces. He appoints chiefs of army, navy and air force. He declares war or concludes peace subject to parliament’s approval.


Discretionary power:

1.      He can decide appointment of PM when no party has clear majority.

A caretaker government cant take a policy decision and president can decide what is policy decision.

2.      Dismiss the council of ministers when it loses majority in Lok Sabha

3.      Dissolve the Lok Sabha if the council of ministers has lost the support in the house.

Quiz

Score more than 80% marks and move ahead else stay back and read again!