HoP = House of People or Lok Sabha
CoS = Council of State of Rajya Sabha
CoM = Council of Mnister
The President of the Republic of India is the head of state of India and the commander-in-chief of the Indian Armed Forces.
- Only elected members of legislative assemblies of states allowed not legislative councils.
- Additionally, only elected members of legislative assemblies of UTs of Delhi and Pondicherry allowed.
- Only elected members of the parliament (and not nominated) take part.
- Value of vote of 1 MLA = (Population of state as per 1971 census) / (Total number of elected MLAs * 1000). UP has highest vote value per MLA and Sikkhim has lowest.
- He submits resignation to vice president.
- An impeachment is a quasi-judicial process. Any house may float the charge (with ≥ 25% of the members of the house signing it and giving 14 days notice) before the other house. The other house then may investigate itself or may cause it to be investigated. Finally it has to pass it with ≥ 2/3rd majority of the total strength of the house.
Vacancy in the office of the president
- If the normal 5 year term is drawing to a close, the elections to new president must happen before the end. Even if somehow the new president is delayed the old one continues until the new one swears in.
Disputes related to the election of president or Vice President (VP)
- SC’s jurisdiction on such disputes shall be exclusive and final. Apart from such disputes, other matters related to the election may be regulated by a law made by parliament.
- No such dispute can arise on grounds of vacancy of electoral college.
- Acts done until the disqualification shall not be nullified.
1. Administrative Powers
Appointments made by president
- CAG, CEC & other ECs, judges of SC and HCs.
- Finance commission & UPSC.
- Water supplies commission.
- A special officer for linguistic minorities.
- Lower bureaucracy only on advice of UPSC. If he fails to accept advice of UPSC then he has to explain the reasons in the parliament. Similarly the removal also is regulated.
Removals made by president
- Chairman or member of UPSC or SPSC (on report of SC).
- CAG, judge of SC or HCs, CEC or ECs (on address of parliament).
- A special officer for SC/ST.
- A commission to report on administration of scheduled areas.
- A commission to investigate into the condition of backward classes.
- After every 10 years, he has to appoint a ST commission in the states.
Laying reports before the parliament
- Report of the special officer for SC/ST.
- Report of the commission on backward classes.
- He may amend the schedules of notified SC/STs in union or any state. If the state list is amended, he has to consult the governor of the state.
- He has special powers in scheduled areas of Assam.
- He can declare / modify the list of scheduled areas (5th schedule)
- He may establish a tribal council in ST areas or scheduled areas.
- All regulations made by the governor of state for the scheduled areas have to be submitted to the president and failing his assent shall not have any effect.
- He may ask the governor to submit a report on the administration of scheduled areas and instruct him on administrative manners.
2. Military Powers
- Art 53: Though the president can declare war or make peace, such an action can be regulated by the parliament. All treaties have to be ratified by the parliament.
- Expenditure on military forces and their training can’t be done without approval of parliament.
3. Legislative Powers
- Absolute veto: PEPSU (Appropriation) Bill, 1956 and Indian Post Office (Amendment) Bill, 1986.
- Suspensive veto: Office of Profit (Amendment) Bill, 2006.
- Pocket veto: Indian Post Office (Amendment) Bill, 1986, Salaries, Allowances and Pensions of MP (Amendment) Bill, 1991.
- If the bill is an ordinary or financial bill, all 4 options (assent, reject, reconsideration and pocket) are available.
- If the bill is a money bill, he can only accept or reject.
- If the bill is a CA bill, he can only accept.
4. Discretionary Powers
- A caretaker government is not supposed to take important policy decisions. President decides what constitutes a policy decision.
- He can decide not to dissolve the HoP(House of People) on advise of a minority government.
- He can refer back an advise from an individual minister for the collective consideration of the CoM.
- He can also refer back an advise of the CoM (Cabinet of Ministers) once with or without suggestions.
- He can seek information from PM on any state matter.
- He can warn / send a message to the CoM and the parliament.
- He can call the session of parliament if the CoM doesn’t advise him to do so within 6 months. He can also dissolve the HoP at the end of its term if the CoM doesn’t advise him to do so.
Nominated members of CoS
- Art 80: He can nominate 12 members in CoS on basis of lsas (literature, science, arts, social service).
5. Ordinance making powers (Art 123)
- He can make ordinances only on matters where parliament is capable of passing laws in its legislative capacity (and not constituent capacity).
- This power has to be exercised only on advice of CoM only when at least 1 of the houses of the parliament is not in session. For an ordinance, the president must be satisfied that conditions exist for immediate action. The misuse of this provision is checked by two provisions – (a) While laying down the ordinance before the parliament, he also has to explain the reasons necessitating such action. (b) The intention can’t be malafide and is subject to judicial review (Cooper case). By 42nd CA Act, 1976 it was provided that president’s satisfaction shall be final and non-judicable. But by 44th CA Act, 1978 this provision was struck down and observations from Cooper case hold.
- An ordinance has to be laid before the parliament and will cease to have effect 6 weeks from the date of commencement (of the house commencing later) or struck down earlier by the parliament.
Laying reports before parliament
He causes the following reports to be laid before the parliament:
- Annual budget.
- CAG report.
- Finance commission report together with explanation of action taken.
- UPSC report together with explanation of non-compliance.
- Report of special officer for SC/ST.
- Report of the commission on backward classes.
- Report on the special officer for linguistic minorities.
Previous sanction to bills before parliament
- A bill for the alteration of existing states / new state formation.
- A money bill or any bill seeking expenditure from CFI even if it is not a money bill (Art 117). Annual financial statement and demand for grants have to be recommended by him.
- A bill affecting taxation in which states are interested or affecting principles for distribution of revenues among the states (Art 274).
- State bills imposing restriction on the freedom of trade (Art 304).
President on UTs
- Not only does he administer UTs through an Administrator but in case of Andamans, Lakshadweep and Dadar & Nagar Haveli he has ultimate law making powers as well (can even overrule parliament).
President on state bills
- Even a money bill of a state can be reserved in which case the president may declare assent or withhold assent (Art 200). In case of other bills, he can additionally refer it back to the legislature for reconsideration (Art 201).
- On matters where a state bill requires prior presidential assent he can instruct the governor to promulgate an ordinance.
6. Pardoning power
Kehar Singh case guidelines by SC on presidential pardons
- The convict has no right to seek oral hearing before the president.
- President has to act on advice of CoM. Such an act is open to limited judicial review only when it is arbitrary, discriminatory or completely irrelevant to the case.
- No further guidelines for the exercise of the power need to be laid down.
Delays in presidential pardons
- Pardon is no more an act of grace but a constitutional duty which needs to be discharged only if doing so furthers public welfare. In the days of English King it was considered an act of grace by the king. However US Supreme Court held that it is no more an act of grace but a duty on executive which if granted amounts to the determination public welfare was better served by pardoning than by not pardoning.
Supreme Court’s Views on delays in presidential pardons
- Earlier the SC held that a delay by the executive by more than 2 years amounts to violation of Article 21 and in that case the death sentence must be quashed.
- In another case the court decided that deciding on mercy petitions was a constitutional duty of the executive which must be speedily discharged.
- In 1989, a constitutional bench while confirming the constitutional duty bound obligation on the executive and overruling the 2 year limit held that it should be decided in a reasonable time. The court also held that delay in the execution can take place due to two reasons: delay in pronouncement of the sentence and delay in deciding on the mercy petition. While the former is ok since it is to ensure a fair trial to the accused, the latter causes more harm and cannot be justified.
- In 2009 the SC once again reminded the government of its constitutional obligation.
Different types of pardons
- Pardon: It rescinds both the sentence and the conviction. It means that the accused is innocent. It can be conditional or unconditional. It can be granted before, during or after the trial.
- Commutation: It substitutes a punishment with another of a lighter character. Examples, death –> rigorous imprisonment –> simple imprisonment –> fine.
- Remission: It reduces the amount of the sentence without reducing its character.
- Respite: Awarding a lesser statement than one prescribed in view of a special fact like ill health or pregnancy.
- Reprieve: It means a stay on the execution of a sentence pending the mercy petition.
Presidential powers (Art 72) vs Governor’s powers (Art 161) w.r.t Pardoning.
- On a court martial case, only president can pardon.
- On an offense involving central law (or concurrent law) or executive power of center only president can pardon. On an offense against state law or executive power of state only governor can pardon.
- President can pardon death cases. Governor can only commute a death case involving state laws only.
- It is given only in rare cases where the murder was committed in a brutal, diabolical and dastardly manner.
7. Emergency Powers
- Art 352: Emergency can be declared in any part (or whole) of India on grounds of war, external aggression or armed rebellion (44th CA Act, 1978 changed ‘internal disturbance’ to ‘armed rebellion’).
- Art 356: If the governance of the state can’t be carried according to the provisions of the Constitution of India.
- Art 360: Financial emergency applicable in any part (or whole) of India.