The Legal Lock


Law Notes

President and his powers under Indian constitution


President represents the nation but does not rule the nation.” – Dr B.R. Ambedkar

India has a parliamentary form of government, a reminder of British rule. There are two Houses of Parliament in India and then there is the President. These comprise the Indian Parliament.

Article 52 of the Indian Constitution states that:

There shall be a President of India.’

The President is the titular head of India and is also known as the First Citizen of India. He is kept on the same pedestal as that of the King (or Queen) of England. He is a part of the Union Executive (Article 52-78 of the Indian Constitution) along with the Vice President, Prime Minister, Council of Ministers and India’s Attorney – General.

Presidential Elections

. The election of the President is indirect and he is elected by the electoral college. The electoral college, mentioned in Article 54, consists of:

1. Members of both Houses of Parliament who is elected,

2. Members of Legislative Assemblies of State who are elected.

However, the nominated members of the legislature are not allowed to vote in Presidential elections.

The system of proportional voting is used for this election. In this system, the number of votes is in proportion to the population of the state for the State Legislature Members (also known as MLA), while for the Members of Parliament the total votes of the State Legislature is divided with the total number of elected members of Parliament.

Qualifications for Indian President

The required qualifications for a person to run for President are given in Article 58. According to it, a person must;

  1. be a citizen of India
  2. have completed the age of 35 years of age,
  3. be qualified for election as a member of the Lok Sabha.

However, someone who;

  1. holds an office of profit,
  2. is a member of either House of Parliament or House of Legislature of any State,

is not eligible to be a Presidential candidate.

Powers and Functions of the President

The following are the powers and functions of the President as mentioned in the Indian Constitution.

Executive Powers

Article 53 vests the executive powers of the country in the President and he can exercise it either directly or indirectly through the officers subordinate to him.

He is also responsible for making all important appointments such as that of the Governor of any state, Lt. Governor, Chief Justice and Judges of High Court and Supreme Court. Prime Minister, Union Ministers, Chief Election Commissioner, Comptroller and Auditor – General, Members of UPSC, Members of Finance Commission and Inter-State council as well as Commissioners of Backward Classes, Scheduled Classes and Scheduled Tribes are also appointed by the President.

The President must be informed of all the decisions of the Council of Ministers and governs the Union Territories through Administrators or Lt. Governors.

The powers to remove his ministers, Attorney – General of India; the Governor of any state; the Chairman or members of Public Service Commission; a judge of Supreme Court or of High Court; or an Election Commissioner also lies with him.

In the case of Sardar Kapur Singh v. Union of India, 1959; the petitioner was a member of the Indian Civil Services and was employed as Deputy Commissioner in Punjab. It was found that the petitioner had misappropriated a sum of Rs. 16,000/- and that he had knowingly permitted a certain contractor to cheat the Government to the extent of Rs. 30,000/-.

A copy of this report was supplied to the petitioner and he was required to provide cause why he should not be dismissed from service.

The petitioner complained to the President of India that he had not been afforded a reasonable opportunity of being heard and requested that he should be permitted to call certain witnesses whom he wanted to produce before the Commissioner but who were not permitted to be produced.

The president declined to reopen the case & after ascertaining the views of the Union Public Service Commission, passed an order, of dismissal. The petitioner challenged the validity of this order on the ground that the constitutional rights guaranteed to him by Arts. 311 and 314 had been violated.

It was held that as the petitioner in the present case had an ample opportunity of defending himself at the first stage his request for another similar inquiry at the second stage could not possibly be entertained and was rightly rejected by the President of India.

Legislative Powers

President has the power to summon, prorogue and address the Parliament. He can also dissolve the Lok Sabha and summon a joint sitting of both houses in case of a deadlock in them.

Certain bills such as reorganization or creation of states, Money bills, bills involving the expenditure from the Consolidated Fund of India etc. cannot be introduced in the Parliament without the previous sanction of the President.

When Parliament is not in session he may call for ordinances in case of any urgency. This is given in Article 123 of the Constitution. This ordinance remains valid for 6 weeks from the date when the services of the legislature are resumed.

In the case of, Krishna Kumar Singh & Anr. v. State of Bihar & Ors. , 2017, the Supreme Court held that the re promulgation of Ordinances was unconstitutional. According to Article 213 and Article 123, the President/Governor could promulgate Ordinances.

However, it was declared that the powers conferred on them were not immune from judicial review. It was also held that re-promulgation of Ordinances without placing these Ordinances before the legislature is a subversion of the democratic legislative process.

He can also nominate 2 members from the Anglo – Indian community in the House of People and 12 members in the Council of State from the field of Art, Literature etc.

Financial Powers

No money bill can be introduced in Lok Sabha without prior approval from the President. He is also allowed to make advances out of the contingency fund of India for famines, droughts etc.

The President appoints the Finance Commission.

Judicial & Diplomatic Powers

The President of India has pardoning power, i.e. under Article 72, he has the power to grant pardon against punishment for any violation of Union Law, punishment by a martial court or death sentence.

In Kehar Singh and Anr. v. Union of India, Kehar Singh, who was an Assistant in the Directorate General of Supply and Disposal, New Delhi, was accused of conspiracy in the killing of the then Prime Minister, Smt. Indira Gandhi. Later, he was convicted and was sentenced to death. After his mercy petition was rejected by both the courts his son presented a petition to President who rejected it. Later the Supreme Court held that :

“It is appropriate that in the matter of life and personal liberty another degree of protection should be extended by entrusting power further to some higher authority to consider the option of commutation. The power so entrusted is a power belonging to the people and lies with the highest dignitary of the State.”

It was held that the order of the President could not be put under judicial review.

As for diplomatic powers, he represents India in international forums and affairs and International Agreements and Treaties approved by the Parliament are concluded in his name.

Military Power

The President is the commander of the defence forces of India and is responsible for the appointment of Chief of Army, Navy and Air Force.

Emergency Powers

Under the provisions of Articles 352, 356 and 350 the president has the power to declare an emergency situation either in the whole of India or in a part of it.

There are 3 types of emergency which are:

  1. National Emergency (Article 352)
  2. State Emergency (Article 356)
  3. Financial Emergency (Article 360) 

All rights excluding Articles 20 and 21 can be suspended by the President and the Parliament can also pass a resolution to impose President’s rule in any state.

He can also promulgate President’s rule in States according to Article 356.

In S.R. Bommai v. Union of India, SR Bommai was the Karnataka Chief Minister between August 1988 and April 1989. He led a Janata Dal government, which was dismissed on the grounds that his party had lost its majority on 21st April 1989 when President’s Rule ) was imposed in Karnataka. The judgement presumed that the power of the president is not absolute. It is in fact, an accustomed power and the presidential proclamation is not excused from the judicial analysis.

Veto Power

The veto power of the President is given in Article 111 of the Indian Constitution. According to it, the President has 3 kinds of Veto powers.

  1. Absolute Veto: The President withholds the assent to the bill.
  2. Suspensive Veto: The power of President to return the bill to Parliament with or without consideration.
  3. Pocket Veto: It is when the President decides to not act upon the bill.