February 19, 2020 President of India By Sutirtha Datta Constitution of India 0 Comments Contents Election of the President of IndiaQualifications for Election as PresidentOath or Affirmation by the PresidentConditions of President’s OfficeTerm of President’s OfficeImpeachment of PresidentVacancy in the President’s OfficeExecutive PowersPardoning PowerPowers to AppointLegislative PowersOrdinance Making PowerDiscretionary Power of PresidentReports laid before Parliament by the PresidentFinancial PowersJudicial PowersDiplomatic PowersMilitary PowersEmergency PowersVeto Power of the President of IndiaAbsolute VetoSuspensive VetoPocket VetoPresidential Veto over State Legislation >>>>> Articles 52 to 73 in Part V Part V deals with the Union Executives. The Union executive consists of President Vice-President Prime Minister Council of ministers Attorney general of India The President of India is the head of the Indian State. He is the first citizen of India. He acts as the symbol of unity, integrity and solidarity of the nation. But the President of India is only a nominal executive. >>>>>> >>>>>> Election of the President of India Article 54 The President is elected by members of electoral college consisting of: Elected members of both the Houses of Parliament Elected members of the legislative assemblies of the states Elected members of the legislative assemblies of the Union Territories Value of the vote of an MLA Value of the vote of an MP Value of vote of MLA of UP is highest & value of vote of MLA of Sikkim is lowest. Value of the vote of MP is more than value of MLA. Election is held in accordance with System of proportional representation Means of the single transferable vote Secret ballot Each member of the electoral college is given only one ballot paper. A candidate, must secure a fixed quota of votes to became the President of India. Electoral quota Single transferable vote process continues till a candidate secures the required quota. Decision of Supreme Court is final in the case of any doubts and disputes regarding election of the President. The indirect election of the President is in harmony with the parliamentary system of govt. Qualifications for Election as President President should be a citizen of India. He should have completed 35 years of age. He should be qualified for election as a member of the Lok Sabha. President should not hold any office of profit under the Union or state govt. or any local or public authority. The nomination of a candidate must be subscribed by min 50 electors as proposers and 50 electors as seconders. Every candidate has to make a security deposit of Rs.15,000 in the Reserve Bank of India. Security deposit forfeited in case the candidate get less than 1/6th of the votes polled. Oath or Affirmation by the President to faithfully execute the office to preserve, protect and defend the Constitution and the law to devote himself to the service and well-being of the people of India The oath is administered by the CJI or the seniormost judge of the Supreme Court available, in his absence. >>>>>> Mughal Garden of Rashtrapati Bhavan >>>>>> Conditions of President’s Office President should not be a member of either House of Parliament or state legislature. In the case of a member, must vacated his seat in that House on the date on which he enters upon his office as President. President should not hold any other office of profit. He is entitled, without payment of rent, to the use of his official residence (Rastrapathi Bhavan). President is entitled to such emoluments, allowances and privileges as may be determined by Parliament. His emoluments and allowances cannot be diminished during his term of office. Privileges and immunities to the President He enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned. Civil proceedings can be instituted against him during his term of office in respect of his personal acts after giving 2 months’ notice. Term of President’s Office The President holds office for a term of 5 years from the date on which he enters upon his office. He can resign at any time by addressing the resignation letter to the Vice-President. President can also be removed from the office by the process of impeachment. President is also eligible for re-election to that office. He may be elected for any number of terms. In USA, a person cannot be elected as President more than twice. Impeachment of President Article 61 Impeachment of President can be initiated for ‘violation of the Constitution’. Constitution does not define the meaning of ‘violation of the Constitution’. The impeachment charges can be initiated by either House of Parliament. These charges should be signed by 1/4th members of that House. 14 days’ notice should be given to the President. Impeachment resolution must passed by a majority of 2/3rd of the total membership of that House. Then it is sent to the other House, which should investigate the charges. The President has the right to appear and to be represented at such investigation. If the other House also sustains the charges and passes the impeachment resolution by a majority of 2/3rd of the total membership, then the President stands removed from his office. Impeachment of President It is a quasi-judicial procedure. Nominated members of either House of Parliament can participate. Elected members of the legislative assemblies of states and the UTs do not participate. No President has so far been impeached. Vacancy in the President’s Office A vacancy can occur in following ways: On the expiry of his tenure of 5 years. By his resignation. On his removal by the process of impeachment. By his death. when he becomes disqualified For holding office of profit. His election is declared void by SC. An election to fill the vacancy must be held before the expiration of the term. The outgoing President continues to hold office in case of any delay in conducting the election. He continues beyond his term of 5 years until his successor assumes charge. If case of resignation, removal, death or disqualification Election to fill the vacancy should be held within six months. Newly-elected President remains in office for a full term of 5 years. When a vacancy occurs Vice-President acts as the President. If sitting President is unable to discharge his functions Vice-President acts as the President. In case the office of Vice-President is vacant, the CJI acts as the President. If the office CJI is also vacant, the seniormost judge of the SC available acts as the President. >>>>>> 1st President & 1st female President of India >>>>>> Powers & Functions of the President Executive powers Legislative powers Financial powers Judicial powers Diplomatic powers Military powers Emergency powers Executive Powers All executive actions of the Govt. of India are formally taken in the name of President. President can seek any information relating to the administration of the Union He can ask for proposals for legislation from the prime minister. President directly administers the UTs through administrators appointed by him. He can declare any area as scheduled area. He has powers regarding administration of scheduled areas and tribal areas. Pardoning Power Article 72 President may grant pardons to persons who have been tried and convicted of any offence . Punishment or sentence is for an offence against a Union Law Punishment or sentence is by a court martial (military court) Sentence is a sentence of death Pardoning power of the President is independent of the Judiciary. It is an executive power. President while exercising this power, does not sit as a court of appeal. Types of pardoning power Pardon – complete release the convict from all sentences. Commutation – giving a lighter form of punishment by changing its character. Remission – reducing the period of sentence without changing its character. Respite – awarding a lesser sentence due to some special facts such as the physical disability of a convict pregnancy of a woman offender Reprieve – stay of the execution of a sentence for a temporary period Purpose of reprieve is to enable the convict to have time to seek pardon or commutation from the President. The petitioner for mercy has no right to an oral hearing by the President. President can examine the evidence afresh and take a view different from the court. The power is to be exercised by the President on the advice of the union cabinet. President is not bound to give reasons for his order. President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake. Supreme Court cannot give guideline for exercising of power by the President. This power of President is not subject to judicial review. Judicial review can be done where the presidential decision is arbitrary, irrational, mala fide or discriminatory. Petitioner cannot file another petition, if one petition for mercy has been rejected by the President. Powers to Appoint Every appointment of union govt. is made in the name of president. Prime minister of India Council of Ministers Attorney General of India Comptroller & Auditor general of India Judges of Supreme Court & High court Governor of the states & administrators of UTs Finance commissioner & its members Members of UPSC & JPSCs Chief election commissioner & its members Chairman & members of SC & ST of commissions Inter-state council Legislative Powers President can summon or prorogue the Parliament. He can dissolve the Lok Sabha. He can also summon a joint sitting of both the Houses. President address the Parliament at the commencement of the 1st session after each general election and the first session of each year. He can send messages to the Houses of Parliament, regarding any pending bill. He can appoint any member of the Lok Sabha to preside over its proceedings when the offices of both the Speaker and the Deputy Speaker fall vacant. President can also appoint any member of the Rajya Sabha to preside over its proceedings when the offices of both the Chairman and the Deputy Chairman fall vacant. He nominates 12 members of the Rajya Sabha and 2 members to the Lok Sabha from the Anglo-Indian Community. He decides on questions as to disqualifications of members of the Parliament, in consultation with the Election Commission. His prior recommendation or permission is needed to introduce certain types of bills in the Parliament. Ordinance Making Power Article 123 Those are in the nature of temporary laws. It is the most important legislative power of the President. It empowers the President to promulgate ordinances when Both the Houses of Parliament are not in session Either of the two Houses of Parliament is not in session An ordinance can also be issued when only one House is in session because a law can be passed by both the Houses. In Cooper case, (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide. An ordinance can be issued only on those subjects on which the Parliament can make laws. Ordinance is subject to the same constitutional limitation as an act of Parliament. Ordinance must be laid before both the Houses of Parliament when it reassembles. If the ordinance is approved by both the Houses, it becomes an act. If Parliament takes no action, ordinance ceases to operate after 6 weeks from the reassembly of Parliament. If both the Houses of Parliament disapproving ordinance, it ceases to operate. The President can also withdraw an ordinance at any time. Power of ordinance-making is not a discretionary power. President can promulgate or withdraw an ordinance only on the advice of the council of ministers. An ordinance can be retrospective, and may come into force from a back date. It may modify or repeal any act of Parliament or another ordinance. It can alter or amend a tax law also. Ordinance cannot be issued to amend the Constitution. D C Wadhwa case (1987) Supreme Court held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature. Discretionary Power of President President has no constitutional discretion power. He has some situational discretion power. Discretion power of President mean that he can act without the advice of the council of ministers. President can act on his discretion Appointment of Prime Minister when no party has a clear majority in the Lok Sabha Prime Minister dies suddenly without any obvious successor Dismissal of the council of ministers when it cannot prove the confidence of the Lok Sabha. Dissolution of the Lok Sabha if the council of ministers has lost its majority Reports laid before Parliament by the President Auditor General Report relating to accounts of govt. of India Recommendation made by Finance commission Report of UPSC, explaining the reasons where any advice of the commission has not been accepted. Report of National commission for SCs & STs Report of special officers for linguistic minorities Financial Powers Money bills can be introduced in Parliament only with prior recommendation of President. He causes to be laid before the Parliament the annual financial statement. No demand for a grant can be made except on his recommendation. President can make advances out of the contingency fund of India to meet any unforeseen expenditure. He constitutes a finance commission after every 5 years to recommend the distribution of revenues between the Centre and the states. Judicial Powers President appoints the Chief Justice and the judges of Supreme Court and High courts. He can seek advice from the Supreme Court on any question of law or fact. The advice tendered by the Supreme Court is not binding on the President. Diplomatic Powers The international treaties and agreements are negotiated and concluded on behalf of the President. They are subject to the approval of the Parliament. President represents India in international forums and affairs He sends and receives diplomats like ambassadors, high commissioners, etc. Military Powers President is the supreme commander of the defence forces of India. In that capacity, he appoints the chiefs of the Army, the Navy and the Air Force. He can declare war or conclude peace, subject to the approval of the Parliament. Emergency Powers President can declare three types of emergencies National Emergency (Article 352) President’s Rule (Article 356 & 365) Financial Emergency (Article 360) >>>>> >>>>> Veto Power of the President of India When a bill is sent to the President after it has been passed by the Parliament, he can: give his assent to the bill, or withhold his assent to the bill, or return the bill (if not a money bill) for reconsideration of the Parliament. If the bill is passed again by the Parliament, with or without amendments, the President has to give his assent to the bill. The object of conferring this power on the President is two-fold to prevent hasty and ill-considered legislation by the Parliament. to prevent a legislation which may be unconstitutional. President has no veto power in respect of a constitutional amendment bill. 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill American President qualified veto power, which is not available to Indian President. Absolute Veto It refers to the power of the President to withhold his assent to a bill passed by the Parliament. This veto is exercised in the following two cases: With respect to private members’ bills With respect to the govt. bills when the cabinet resigns and the new cabinet advises the President not to give his assent to such bills. Absolute veto power used President Dr. Rajendra Prasad – 1954 President R Venkataraman – 1991 Suspensive Veto President exercises this veto when he returns a bill to Parliament for reconsideration. If the bill is passed again by the Parliament, with or without amendments, the President has to give his assent to the bill. So the presidential veto is overridden by a re-passage of the bill by the same ordinary majority. In USA it need a higher majority. President does not possess this veto in the case of money bills. The President can either give his assent to a money bill or withhold his assent to a money bill but cannot return it for the reconsideration of the Parliament. Normally, the President gives his assent to money bill as it is introduced in the Parliament with his previous permission. Pocket Veto President simply keeps the bill pending for an indefinite period. Constitution does not prescribe any time-limit to President to take decision with respect to a bill. In USA, President has to return the bill for reconsideration within 10 days. So, the pocket of the Indian President is bigger than that of the American President. In 1986, President Zail Singh exercised the pocket veto with respect to the Indian Post Office (Amendment) Bill. Presidential Veto over State Legislation Governor can reserved a state legislature bill for consideration of the President. The President can Give his assent to the bill, or Withhold his assent to the bill, or Direct the governor to return the bill for reconsideration of the state legislature. It is not obligatory for the President to give his assent even if the bill is again passed by the state legislature. If the case of a money bill, President can’t return the bill.