October 28, 2021

President of India

law

The office of the President is very august and the Constitution attaches to it many privileges and immunities. The President along with the Council of Ministers headed by the Prime Minister comprises the Central executive which has been dealt from Article 52 to 78 of the Constitution.

The President is the head of the state and the formal executive. All executive action at the centre is expressed to be taken in his name. This power has been granted to him under Article 53(1) which states that the executive power shall be vested in the President and shall be exercised by him directly or through officers subordinate to him.

The President of India is the head of state and first citizen of India and the Supreme Commander of the Indian armed forces. In theory, the President possesses considerable power. In practice, the President’s role is comparable to those of a constitutional monarch, and indeed the office replaced that of the British monarch (represented by the Governor General) upon India’s independence.

The Constitution only formally vests functions in the hands of the President. In reality he has no function to discharge his discretion and or his individual judgment. He has to act on ministerial advice and therefore the Prime Minister and the Council of Ministers constitute the real and effective executive.

It is said that this structure of the central executive closely resembles the British Model which functions on the basis of unwritten conventions. In India some of these conventions have been written in the Constitution with regards to tenure, appointment and collective responsibility of the Ministers. However, still some matters have been left to conventions for example the accountability of the Cabinet and the Minister for the acts of his subordinates.

The office of the president is created by Article 52 of the Constitution and the matters of election are dealt from Article 54 to 60 of the Constitution. The President is elected by the method of indirect election i.e. by an electoral college consisting of elected members of both Houses of Parliament and of the State legislative assemblies. The method of indirect election was to emphasize the ministerial character of the executive that the effective power resides in the Ministry and not in the President as such. Secondly, the method of direct election would have been very costly and energy consuming. There was also the fear that a directly elected President may in course of time assume all the power.

The President derives its power from Article 53 which vests in him all the executive authority including the Supreme Command of the Armed forces. There are several other provisions in the Constitution which mention specific functions of the President. Briefly the President has the power to appoint all important offices including those of the Prime Minister and other Central Ministers, Governors, Judges of the Supreme Court and the High Courts and even Election commissioners. He even he has the authority to appoint commissions with respect to the administration of scheduled areas. Most importantly the President is vested with wide powers during Emergency under Article 352 to 360 of the Constitution including suspension of Fundamental rights. Moreover every bill comes to him for his assent and can either refuse to give his assent or send it back for reconsideration.

Powers of President are as Follows


1) Administrative Powers

The President is the head of Union of India. All the administrative actions of the Union are done or carried in his name.  The appointments, transfer and removal of the High officials are done under his power and in his name.

2) Military Power

Article 53(2) declares that the supreme command of Defense Force of the Union shall be vested in the president and the the exercise thereof shall be regulated by law. He is called as the Commander in chief of Defense forces. He is the person who is competent to declare War and Peace. But the Parliament has some control over this power, specially as regards to budgetary control of military is in the hand of Parliament and all military laws passed by the parliament. 


  
3) Diplomatic Power                                                                
President represent the nation in foreign countries.  As the head of the State, the president sends and receives ambassadors, and other diplomatic representatives. All Treaties and International agreements are negotiated and concluded in the name of the President though subject to ratification by Parliament. 


4) Executive powers  

Executive Powers The President takes all executive actions of the Government. He makes the rules for authentication of instruments made and executed in his name, transaction of business rules of the Union Government. He appoints the Prime Minister, other Ministers, Attorney General of India, Comptroller and Auditor General, Chief Election Commissioners, Chairman and members of the Union Public Service Commission, Governors of States, Chairman and members the finance Commission. He has the power to declare scheduled areas, their as well as tribal areas administration. He administers Union Territories through administrators appointed by him. He can appoint Inter State Councils. 


5) Veto Power

The President of India enjoy absolute (withholding assent ), suspensive ( law is suspended until the legislature reconsiders it ) and Pocket Veto ( take no action, no limited time period, neither a ratify nor reject nor return) powers. Under Article 111, he has 3 alternatives when represented with a Bill. He may give assent to the Bill or withhold his assent or return the bill for reconsideration of the Parliament. (Note that a money bill cannot be returned.) 


6) Legislative powers

The President can summon, prorogue, address, send messages to Parliament and dissolve the Lok Sabha, promulgate Ordinance at any time, but not when both Houses of Parliament are in session. He nominates 12 members of the Rajya Sabha from amongst in persons having special knowledge or practical experience in Literature, Science and Social Service. He can nominated two members of the Anglo-Indian community to the Lok Sabha. He and the Election Commission of India together decide on the issue of the disqualification of members of the Parliament. For a few types of bills, his prior permission is required for introduction of those bills. He represents the reports of the controller and Auditor General, Union Public Service Commission, Finance commission etc before the parliament.


7) Power to make Rules  

It is a part of delegation of power in respect of legislation by the Parliament to the President according to the provision of Constitution. The Constitution confers therefore, rule making power on the president in respect of following matters –

1) Authentication of Orders and other instruments [Article 77(2).]

2) For convenient transaction of the business of Government and allocation of the business among Ministers [Article 77 (3)]

3) Regarding recruitment and conditions of service of the Secretarial staff of both the Houses of Parliament [ Article 98 (3)]

4) Rules of procedure with respect to joint sitting of and Communications between the two Houses. [Article 118(3)]

5) As to appointments of officers and servants of the Supreme Court.[ Article 146]

6) As to practice and procedure of the Supreme Court. (Article 145).

7) As to conditions of service of all staff and members of the Union Public Service Commission. (Article 309). 

8) Power to issue ordinance 

An ordinance is a temporary law having the force of law. When both the houses of the Parliament are not in session, the President can promulgate Ordinance under article 123 of the Constitution. He should be satisfied that a situation exists which require immediate action. An Ordinance cease to operate on expiry of 6 weeks from the reassembly of Parliament. In case if the House reassemble on a different date, the period of 6 weeks is calculated from the later date. Without parliamentary approval, an Ordinance can last for a maximum period six months and 6 weeks. All acts done and completed an unapproval Ordinance will lapse.

The President may withdraw this Ordinance at any time. The president exercises this power on the advice of the Prime Minister headed by the Council of Ministers. An Ordinance cannot be used to amend the Constitution. 


9) Power in Relation to State Legislation 

The Governor of the State may reserve the Bill for the consideration of the President through passed by the Houses of the State Legislature. The State Law imposing tax under Article 288, cannot be removed in the State Legislature without prior sanction of the President. 

10) Financial Power 

 He recommends the introduction of financial and money Bills, gives assent to bills. A demand for grant cannot be made without his recommendation. The finance commission is also constituted by him once in each 5 years.


11) Pardoning Power

The President is empowered under Article 72 of the Constitution to grant pardon to a Convict in case of offense against Union law, sentenced or punished by Court martial, sentenced do Death.

Pardon : Pardon means to have absolve the Convict completely.

Commutation : to replace the punishment with a less severe punishment. 

Remission : to reduce the period of sentence, but the character of punishment remains same.

Respite : a lesser punishment taking into consideration a special case like a pregnant woman Convict.

Reprieve : to stay the punishment temporarily.


12) Judicial Powers 

Judicial Powers The President appoints the Chief Justice, judges of Supreme Court, High courts. He grants pardons, reprieves, respites or remission of punishment or suspends, and remits ir commutes sentences in certain cases. He can seek advice from the Supreme Court on any question or fact, and this advice however is not binding. 


13) Emergency Power 

Article 352 conferred power to the President to make a Proclamation of Emergency if he is satisfied that the security of India or any part of the territory of India is threatened by war, external aggression, or armed rebellion. After such a proclamation, the president may by order, suspend the remedy for the enforcement of fundamental rights secured by Part – III of the Constitution.

 Article 356 confers power on the President to make a Proclamation declaring that the Government in a State cannot be carried on in accordance with the provisions of the Constitution. Thereafter, he may assume to himself, all or any of the functions, of the Government of State or all or any of the powers vested in the Governor or any authority in the State other than the Legislature of that State.

Under Article 360, the president is vested with the power to proclaim financial emergency, if he is satisfied that the financial stability or the Credit of India or any part of India is threatened by any reason.

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