Legislative Powers of the President: Theory & Practice

Introduction

Under the Indian Constitution, our country follows the Parliamentary System of Government which refers to the fusion of executive and legislative branches of government and the executive gets its powers from and is accountable to the legislature. James Wilford Garner, an American Political Science professor, gives a crystal-clear interpretation of Parliamentary Form of Government: It is that system in which the real executive- the cabinet or ministry is immediately and legally responsible to the legislature or one branch of it (usually the more popular chamber) for its political policies and acts…., while the titular or nominative executive- the chief of state- occupies a position of irresponsibility.” The ‘titular or nominative executive- the chief of state’, mentioned in this definition refers to the President of India. Although the ‘position of irresponsibility’ is exaggerated as the President also has a plethora of responsibilities like executive, legislative, judicial, financial, etc., powers which are cardinal for the functioning of our country but predominantly, the position of the President is mostly titular and the Prime Minister i.e., ‘the real executive’ possess the major responsibilities and command over the Cabinet and the Lower House of the Parliament (Lok Sabha). Adopted from Britain, this form of government is presently practiced in other countries like Japan, Germany, Australia, New Zealand, etc. As opposed to the Parliamentary form of government, countries like the United States, Argentina, Chile, Maldives, etc., follow the Presidential System of Government where the executive and legislature are separate and there is mutual independence between the two. In the opinion of Raymond Garfield Gettel, an American football coach, and political science professor, “Presidential government is that form in which the chief executive is independent of the legislature as to his tenure and to a large extent, as to his policies and acts. In this system, the head of the state is real executive.”[1] DV Verney states, “The term ‘presidential’ has been chosen because in this system the office of the head of the government and head of state is combined in the president.” Here the President has wide powers almost comparable to the Prime Minister in Parliamentary Form. The President enjoys autonomy in appointing his cabinet who serve as his policy advisers and are individually accountable to the President.

Clearly, both the systems differ on many levels especially in terms of the position of ‘President’ where one entails only a titular or namesake role of the President while the other possesses the leadership role with predominant powers. The highlight of this research article is to cover the legislative powers of the President and to analyse the powers in theory and their operation on the ground.

The President of India

Article 52 of the Indian Constitution provides that there shall be a President of India. The President accompanied with the Council of Ministers led by the Prime Minister constitutes the Central executive which has been dealt with from Article 52 to 78 of the Constitution. The President of India is the head of state and the first citizen of India and the Supreme Commander of the Indian armed forces. The executive power of the Union shall be vested in the President (Head of the State) (Article 53) and it shall be exercised by him within the terms of the Constitution either directly or through officers subordinate to him. Under Article 73, the executive power of the Union shall cover matters related to the Parliament which has the authority to legislate and encompasses the exercise of such rights, powers, and jurisdiction which the Government of India operates by virtue of any treaty or agreement. These executive powers which are exercised by the President are co-extensive with the legislative powers of the Union.[2] The provisions dealing with the President are from Articles 52-62 of the Constitution. It must be noted that in practice, the President is only a formal head who exercises his powers and functions on the advice and direction of the Council of Ministers headed by the Prime Minister and does not have the authority to act on his own individual judgment.

Powers and Functions of the President

The President, although being a titular head, possesses a plethora of powers dealing with executive, military, diplomatic, legislative, judicial, etc. which he practices in accordance with the advice of the Council of Ministers. In this article, we are dealing with the comprehensive analysis of the Legislative Powers of the President where integral responsibilities range from summoning the Parliament to Ordinance making.

Legislative Powers of the President

Theoretically, legislation means formulating, and ratification of laws by local, state, and national legislatures. In the context of the President of India, he is a quintessential part of the Union Parliament, the national legislative body which is authorised with the enrolling, enacting, and promulgating of laws. The role of the President in legislative procedures can be illustrated as:   

Summoning, Prorogation, and Dissolution

Under Article 85 of the Constitution, the President has the authority to summon, prorogue and dissolve the Houses of the Parliament i.e., command the Houses to be present, discontinue the session of the Parliament without dissolving them, and disintegrating the Lok Sabha without completing its full term and initiating fresh general elections.[3] But certain restrictions are also present within this power which is mentioned in Article 85 (1) under which the President must summon the Houses of Parliament not exceeding six months from the last sitting of the previous session.

Addressing the Houses of Parliament

Under Article 86 of the Constitution, the President addresses either House of Parliament or a joint session of Parliament at the commencement of every session, via this address, the President encapsulates the objectives, approach, policies, and programmes of the Government. His speech is like that of the King of England and is prepared by the Prime Minister. Under Article 86 (2), the President has the right to send messages to either House of the
Parliament via a pending bill which the House must consider “with all convenient dispatch”[4].

Similarly, under Article 87, the President gives a special opening address to both the Houses of the Parliament during the first session after each general election to the House of the People and during the starting of the first session of each year where both Houses of Parliament
are assembled together. In addition to this, the members of the Parliament subscribe an oath before the President and the President elects “Speaker Protem” who is ultimately responsible for electing the Speaker of the Lok Sabha.

In practice, many times the President’s address has been amended in Rajya Sabha. These include:

➢ The first time that the Motion of Thanks was amended came in 1980 on the issue of engineering defections.

➢ The second one came in 1989 when six amendments including the Ram Janmabhoomi-Babri
Masjid dispute and the India-Sri Lanka accord were ratified.

➢ The third occasion was in 2001 when an amendment on the sale of a public sector undertaking, Balco, to a private company was accepted.[5]

In many instances, the opposition devises an amendment to the President’s address to ridicule the incumbent government which has happened five times in independent India’s parliamentary history and two times consecutively for the NDA-led government in 2015 and 2016. In 2015, the Opposition (CPI members Sitaram Yechury and P. Rajeeve) moved the amendment to the President’s address over corruption and black money which got ratified[6]. In 2016, the Opposition (moved by Leader of the Opposition Ghulam Nabi Azad) got an amendment passed to the President’s address over the rights of citizens to contest in panchayat elections, in the backdrop of restrictions imposed in Haryana and Rajasthan, both ruled by the BJP[7]. Thus, President’s address holds an esteemed position that has been used as a weapon by the Opposition members to attack the government for its policies or approach.

Joint Sitting of the Houses of Parliament

Under Article 108, the President is authorized to call for a joint session of both the Houses of Parliament if there arises a deadlock between the Houses over any bill or amendments to the bill. This joint sitting is presided over by the President[8]. It must be clarified that the joint session cannot be called if the bill is dealing with Constitutional Amendment under Article 368 as amendment can only be passed by a 2/3rd majority in both Houses or Money Bill under Article 110 as only the House of People (Lok Sabha) has the authority to pass it.

In practice, the joint session has been called only five times since independence:

1. Dowry Prohibition Act- 1961
2. Banking Service Commission Act-1978
3. The Prevention of Terrorism Act (aka POTA)-2002
4. Bill for Women Representation -2008 (Bill defunct)
5. The Goods and Service Tax (GST) Bill- 2017

Nomination of Members

Under Article 80(1), the President has the right to nominate 12 members to the Rajya Sabha who are esteemed and have special knowledge in the fields of Literature, Science, Art, and Social Service[9]. Till present, various popular and dynamic personalities like Zakir Hussain, Khushwant Singh, Nargis Dutt, MF Hussain, Ram Jethmalani, Sachin Tendulkar, Javed Akhtar, etc., have been nominated to Rajya Sabha. In 2019, a controversy arose when President Ram Nath Kovind nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha who had been retired from the CJI post barely 4 months ago. This was a controversial incident as it constitutional separation of powers between the executive and the judiciary were considered to be violated, especially since Gogoi was the leading judge in important cases that the same government which has nominated him had important political stakes in like the Rafale matter, the dismissal of Central Bureau of Investigation director Alok Verma, the Ayodhya matter, etc. In addition to this, during his tenure as CJI, Gogoi was accused of sexual harassment and the subsequent effort to hush the victim who had put the allegations, also makes the matter worse. The said precedent of nominating judges to Rajya Sabha was set by Indira Gandhi when under her rule, Justice Baharul Islam, who retired from the apex court in January 1983, was nominated to Rajya Sabha in June 1983. The said nomination was interpreted by the public as a gift to the judge for excusing the then Congress CM of Bihar, Jagannath Mishra, in the Patna Urban Cooperative Bank scam case[10].

Under Article 331, the President has the right to nominate two members of the Anglo-Indian which constitutes to be a religious, social, as well as a linguistic minority community, if he has the reason to believe that this community is not being well-represented in the Lok Sabha[11]. Over time, members like Frank Antony, Neil O’ Brien, George Baker, etc., have been nominated on the Anglo-Indian reservation. In January 2020, the reserved seats for Anglo-Indian community in the Parliament and State Legislatures of India were elapsed by the 126th Constitutional Amendment Bill of 2019which was ordained as the 104th Constitutional Amendment Act, 2019[12].

Laying Reports before the Parliament

Various reports like Annual Financial Statement (colloquially called Budget) under Article 112, Reports of Auditor-General relating to the accounts of the Indian Government under Article 115, Annual report of Union Public Service Commission under Article 323, Reports of Finance Commission along with the explanatory memorandum of action taken on the recommendations of the Commission under Article 281, and Report of the Special officers of Linguistic Minorities and Backward Classes under Article 350.

Previous Sanction of President on certain Legislations

Certain bills like matters listed in Article 3 dealing with the formation of new states, alteration of their boundaries, etc., or matters listed in Article 31A or Money Bill under Article 117 or a bill when enacted will need funds from Consolidated Fund of India under Article 117 (3), requires the previous sanction by the President. Other articles which require a continued sanction are Article 274(1) dealing with the imposition on or variation in any tax or duty in which States are interested, the principles on which sums of money are or may be distributable to States are affected, etc., and Article 304 in which reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State that may be required in the public interest are present[13].

President Assent to Legislation

During the formation of law in Parliament, when the bill is passed by both the Houses of Parliament, the Secretariat of the House which is last in possession of the Bill obtains the assent of the President. If the said bill is the Money Bill or a bill passed at Joint Sitting of the Houses, the Lok Sabha Secretariat obtains the assent of the President. The Bill would only become an Act when assented by the President. Article 111 deals with this power of the President, in case of any bill other than the Money Bill, the President has the right to give assent or withhold his assent or to give it for reconsideration. If the President sends the bill for reconsideration and the Parliament does not bring any amendments to the bill, the President then becomes bound to give assent to the bill. When the President withholds his/her assent, this is called President’s Veto Power. In the case of the Money Bills, the President can only assent or reject the bill but cannot send it for reconsideration[14]. The vetoes available to the Indian President are:

1. Absolute Veto: In this, the President can reprobate his assent completely i.e., he/she may refuse to give acceptance which would lead to the end of that bill. In practice, President Dr. Rajendra Prasad used absolute veto in case of PEPSU Appropriation Bill in 1954. In another case, former President R. Venkataraman in the case of Salary, Amendments and Pension of Members of Parliament (Amendment) Bill exercised absolute veto.
2. Suspensive Veto: In this, the executive veto can be overridden by a simple majority i.e., the bill sent for reconsideration, would have to be assented when sent again with or without amendments. In 2006, the President used Suspensive Veto over the Office of Profit Bill, 2006 which enacted a self-serving piece of legislation that protected members from disqualification with retrospective effect. President A. P. J. Kalam, returned the Bill. However, the Bill was sent back without any amendment to President again and was finally approved.  
3. Pocket Veto: In this case, when the bill is presented to the President, he/she may neither give the assent nor send it back for reconsideration. Since the constitution does not give any timeline within which the bill needs to be assented, the President has the power to delay it indefinitely. In practice, it has been used only once i.e., in 1987, in case of Indian Post Office (Amendment) Bill 1986 which among other things gave the executive wide powers to interdict personal communication, violating the right to privacy. The President recommended changes to the bill but the bill was passed without any amendments. When the said changes were not made, the President used Pocket Veto to prevent the bill from becoming a law.

Under Article 200, the Governor has the option to reserve the bill for consideration of the President where he is under no compulsion to assent to the bill. Thus, it is form of a “cold storage” power that the President has in relation to control over state legislation.

Making Regulations for the Union Territories

Under Article 240, the President is authorised to make regulations for the peace, progress and good government of the Union territories of- the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Puducherry (former Pondicherry) in special circumstances. For Pondicherry, the President can make rules for peace, progress and good government only when the assembly is dissolved and suspended.

Promulgation of Ordinance

Although the law-making power is vested with the Parliament but the President has been authorised to promulgate ordinances under special circumstances. It is the most important power and it is mentioned under Article 123 of the Constitution. If at any time, the Parliament is not in session and the circumstances satisfy the necessity to take immediate action, the President is empowered to issue ordinances. It must be noted that the President act on the advice of the Council of Ministers to promulgate ordinances and does not have a personal say on it. These ordinances will have the same validity as an Act of the Parliament. These ordinances have a validity of six months from the date of its issuance and from six weeks of the commencement of session of the Parliament, it must be laid before the Houses of the Parliament[15]. It must be clarified that ‘satisfaction of urgent circumstances’ is open to judicial review and the court has the power to inquire into its merits and analyse whether it was made with mala-fide intention.[16] The Supreme Court has also observed that only the President’s satisfaction in issuing ordinances is not enough.[17]

Various times the validity of ordinances have been challenged, in RK Garg v. UOI[18], the court held that the Special Bearer Bonds Ordinance was not ultra vires of Article 123 and that President is competent to issue ordinance amending tax laws. Similarly, in AK Roy v. UOI[19], the court held that the National Security Ordinance, 1980 which was issued to provide for preventive detention in certain cases was not violative of Article 14.

Many times, since the independence, the ordinances issued by the President have been met with controversies. The present NDA government has been criticised for its unfortunate culture of ordinance. Some of the controversial ordinances are: the Enemy Property (Amendment and Validation) Ordinance saw some controversy as it was the fifth time that the law was being introduced through the ordinance route, the Central farm laws which met with widespread protests were initially brought through the ordinance route (The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, and the ordinance to amend The Essential Commodities Act were brought in June 2020)[20].

Conclusion

The President of India, although being a titular head, has a huge range of responsibilities and is an indispensable part of the Union Parliament. The President’s share of Legislative powers has ignited controversies and shockwaves, and many times they have been used as a tool to make a political statement and to enforce a governmental agenda.  

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End Notes

[1] How does a Parliamentary Democracy Work, Colors New York, June 16, 2021, [Online] Available from: https://colors-newyork.com/how-does-a-parliamentary-democracy-work/ (Accessed December 15, 2021).

[2] JN Pandey, The Constitutional Law of India, 10^th Edition, Central Law Agency, Allahabad, p. 206, June 5, 1980 (Accessed December 15, 2021).

[3] Id. at p. 214.

[4] Ibid.

[5] Editorial, Heeding the spirit of the amendment, The Hindu, March 12, 2016, [Online] Available from: https://www.thehindu.com/opinion/editorial/motion-of-thanks-in-rs-heeding-the-spirit-of-the-amendment/article8342674.ece (Accessed December 15, 2021).

[6] The Hindu Staff, Opposition gets amendment passed in Rajya Sabha embarrassing government, The Hindu, March 3, 2015, [Online] Available from: https://www.thehindu.com/news/national/opposition-gets-amendment-passed-in-rajya-sabha-embarrassing-government/article6955737.ece [Accessed December 15, 2021].

[7] The Wire Staff, In Unprecedented Move, Modi Government Sends Former CJI Ranjan Gogoi to Rajya Sabha, The Wire, March 16, 2020, [Online] Available from: https://thewire.in/law/cji-ranjan-gogoi-rajya-sabha-nomination [Accessed December 15, 2021].

[8] Supra note 3.

[10]The Wire Staff, In Unprecedented Move, Modi Government Sends Former CJI Ranjan Gogoi to Rajya Sabha, The Wire, March 16, 2020, [Online] Available from: https://thewire.in/law/cji-ranjan-gogoi-rajya-sabha-nomination [Accessed December 15, 2021].

[11] Supra note 7.

[12] Abantika Ghosh and Pradeep Kaushal, Explained: Anglo-Indian quota, its history, MPs, Indian Express, January 2, 2020, [Online] Available from: https://indianexpress.com/article/explained/anglo-indian-quota-history-mps-6164232/ [Accessed December 16, 2021].

[13] Jatin Verma, Legislative Power of President, Unacademy, [Online] Available from: https://www.jatinverma.org/uploads/downloads/Legislative_Power_of_President.pdf [Accessed December 13, 2021].

[14] Devender Singh, Legislating a law, India Legal, October 16, 2016, [Online] Available from: https://www.indialegallive.com/rites-of-passage-of-a-bill/ [Accessed December 10, 2021].

[15] JN Pandey, The Constitutional Law of India, 10^th Edition, Central Law Agency, Allahabad, p. 215, June 5, 1980.

[16] Prem Narain v. State of UP, AIR 1960 All 205; Emperor v. Lal Sharma, AIR 1945 PC 48.

[17] RC Cooper v. UOI, AIR 1970 SC 564.

[18] AIR 1981 SC 2138.

[19] AIR 1982, SC 710.

[20] Derek O’ Brien, The ordinance raj of the Bhartiya Janata Party, Hindustan Times, September 11, 2020, [Online] Available from: https://www.hindustantimes.com/analysis/the-ordinance-raj-of-the-bharatiya-janata-party/story-NlVvn0pm6updxwYlj0gSvJ.html [Accessed December 15, 2021].

Author: Jagrati Gupta (aculty of Law, Banaras Hindu University, Varanasi)