India achieved independence from the British on 15 August 1947, initially as a Dominion within the Commonwealth of Nations with George VI as king, represented in the country by a governor-general. Still, following this, the Constituent Assembly of India, under the leadership of Dr.B.R.Ambedkar, undertook the process of drafting a completely new constitution for the country. The Constitution of India was eventually enacted on 26 November 1949 and came into force on 26 January 1950, making India a republic. The offices of monarch and governor-general were replaced by the new office of President of India, with Rajendra Prasad as the first incumbent.
The constitution of the Republic of India (Articles 53, 74(2), 79 & 111) gave the President the responsibility and authority to defend and protect the constitution of India and its rule of law. Invariably, any action taken by the executive or legislature entities of the constitution shall become law only after President's assent. The president shall not accept any actions of the executive or legislature which are unconstitutional. The president is the foremost, most empowered and prompt defender of the constitution (article 60), who has pre-emptive power for ensuring constitutionality in the actions of the executive or legislature. The role of the judiciary in upholding the constitution of India is the second line of defence in nullifying any unconstitutional actions of the executive and legislative entities of the Indian Union.
The primary duty of the President is to preserve, protect and defend the constitution and the law of India as made part of his oath (Article 60 of Indian constitution). The President is the common head of all independent constitutional entities. All his actions, recommendations (Article 3, Article 111, Article 274, etc.) and supervisory powers (Article 74(2), Article 78 c, Article 108, Article 111, etc.) over the executive and legislative entities of India shall be used in accordance to uphold the constitution. There is no bar on the actions of the President to contest in the court of law.
Legislative power is constitutionally vested by the Parliament of India of which the president is the head, to facilitate the law making process per the constitution (Article 78, Article 86, etc.). The President of the Republic summons both the Houses (The House of the People and 'The Council of States') of the Parliament and prorogues them. He can dissolve the Lok Sabha.
The President inaugurates Parliament by addressing it after the general elections and also at the beginning of the first session every year per Article 87(1). The Presidential address on these occasions is generally meant to outline the new policies of the government.
All bills passed by the Parliament can become laws only after receiving the assent of the President per Article 111. After a bill is presented to him, the President shall declare either that he assents to the Bill, or that he withholds his assent from it. As a third option, he can return a bill to Parliament, if it is not a money bill, for reconsideration. President may be of view that a particular bill passed under the legislative powers of parliament is violating the constitution, he can send back the bill with his recommendation to pass the bill under the constituent powers of parliament following the Article 368 procedure. When, after reconsideration, the bill is passed accordingly and presented to the President, with or without amendments, the President cannot withhold his assent from it. The President can also withhold his assent to a bill when it is initially presented to him (rather than return it to Parliament) thereby exercising a pocket veto on the advice of prime minister or council of ministers per Article 74 if it is inconsistent to the constitution. Article 143 gave power to the president to consult the Supreme Court about the constitutional validity of any issue. President shall assent the constitutional amendment bills without power to withhold the bills per Article 368 (2)
When either of the two Houses of the Parliament of India is not in session, and if the government feels the need for an immediate procedure, the President can promulgate ordinances which have the same force and effect as an act passed by Parliament under its legislative powers. These are in the nature of interim or temporary legislation and their continuance is subject to parliamentary approval. Ordinances remain valid for no more than six weeks from the date the Parliament is convened unless approved by it earlier. Under Article 123, President as the upholder of the constitution shall be satisfied that immediate action is mandatory as advised by the union cabinet and he is confident that the government commands majority support in the Parliament needed for the passing of the ordinance into an act and Parliament can be summoned to deliberate on the passing of the ordinance as soon as possible. The promulgated ordinance is treated as an act of Parliament when in force and it is the responsibility of the President to withdraw the ordinance as soon as the reasons for promulgation of the ordinance are no longer applicable. Bringing laws in the form of ordinances has become a routine matter by the government and President, but the provisions made in Article 123 are meant for mitigating unusual circumstances where immediate action is inevitable when the extant provisions of law are inadequate. Re-promulgation of ordinances after failing to get approval within stipulated time of the both houses of parliament is unconstitutional act by the President. President should not incorporate any matter in an ordinance which is violating the constitution or needs amendment to the constitution. The President should take moral responsibility when an ordinance elapses automatically or is not approved by the Parliament or violating the constitution.
Per Article 53, the executive power of the country is vested in the President and is exercised by President either directly or through officers subordinate to him in accordance with the Constitution. When parliament thinks fit it may accord additional executive powers to the president per Article 70 which may be further delegated by the president to the governors of states per Article 160. Union cabinet with Prime Minister as its head, should aid and advice the President in performing his functions. Per Article 74 (2), the council of ministers or Prime Minister are not accountable legally to the advice tendered to the President but it is the sole responsibility of the President to ensure compliance with the constitution in performing his duties.President or his subordinate officers is bound by the provisions of the constitution notwithstanding any advice by union cabinet
The primary duty of the President is to preserve, protect and defend the constitution and the law of India per Article 60. The President appoints the Chief Justice of the Union Judiciary and other judges on the advice of the Chief Justice. He dismisses the judges if and only if the two Houses of the Parliament pass resolutions to that effect by a two-thirds majority of the members present.
Attorney General for India who is the Indian government's chief legal advisor, is appointed by the President of India under Article 76(1) and holds office during the pleasure of the President. If the President considers a question of law or a matter of public importance has arisen, he can also ask for the advisory opinion of the Supreme Court per Article 143. Per Article 88, President can ask the Attorney General to attend the parliamentary proceedings and report to him any unlawful functioning if any.
The President appoints, as Prime Minister, the person most likely to command the support of the majority in the Lok Sabha (usually the leader of the majority party or coalition). The President then appoints the other members of the Council of Ministers, distributing portfolios to them on the advice of the Prime Minister.
The Council of Ministers remains in power at the 'pleasure' of the President.
The President appoints 12 members of the Rajya Sabha from amongst persons who have special knowledge or practical experience in respect of such matters as literature, science, art and social service.
Governors of States are also appointed by the President who shall work at the pleasure of the President. Per Article 156, President is empowered to dismiss a governor who has violated the constitution in his acts.
The President is responsible for making a wide variety of appointments. These include:The Chief Justice, other judges of the Supreme Court and High Courts of India
The Chief Minister of the National capital territory of Delhi (Article 239 AA 5 of the constitution)
The Attorney General
The Comptroller and Auditor General
The Chief Election Commissioner and other Election Commissioners
The Chairman and other Members of the Union Public Service Commission
Vice-Chancellor of the central university and academic staff of the central university through his nominee
Ambassadors and High Commissioners to other countries (only through the list of names given by the Prime Minister).
A money bill can be introduced in the Parliament only with the President’s recommendation.
The President lays the Annual Financial Statement, i.e. the Union budget, before the Parliament.
The President can take advances out of the Contingency Fund of India to meet unforeseen expenses.
The President constitutes a Finance commission after every five years to recommend the distribution of the taxes between the centre and the States.
All international treaties and agreements are negotiated and concluded on behalf of the President. However, in practice, such negotiations are usually carried out by the Prime Minister along with his Cabinet (especially the Foreign Minister). Also, such treaties are subject to the approval of the Parliament. The President represents India in international forums and affairs where such a function is chiefly ceremonial. The President may also send and receive diplomats, i.e. the officers from the Indian Foreign Service. The President is the first citizen of the country.
The President is the Supreme Commander of the Indian Armed Forces. The President can declare war or conclude peace, on the advice of the Union Council of Ministers headed by the Prime Minister. All important treaties and contracts are made in the President's name. He also appoints the chiefs of the service branches of the armed forces.
As mentioned in Article 72 of the Indian Constitution, the President is empowered with the powers to grant pardons in the following situations:Punishment is for an offence against Union Law
Punishment is by a Military Court
Sentence is that of death
The decisions involving pardoning and other rights by the President are independent of the opinion of the Prime Minister or the Lok Sabha majority. In most cases, however, the President exercises his executive powers on the advice of the Prime Minister and the cabinet
The President can declare three types of emergencies: national, state and financial, under articles 352, 356 & 360 in addition to promulgating ordinances under article 123.
A national emergency can be declared in the whole of India or a part of its territory for causes of war or armed rebellion or an external aggression. Such an emergency was declared in India in 1962 (Indo-China war), 1971 (Indo-Pakistan war), and 1975 to 1977 (declared by Indira Gandhi).[see main]
Under Article 352 of the India Constitution, the President can declare such an emergency only on the basis of a written request by the cabinet of ministers headed by the Prime Minister. Such a proclamation must be approved by the Parliament with two thirds majority within one month. Such an emergency can be imposed for six months. It can be extended by six months by repeated parliamentary approval-there is no maximum duration.
In such an emergency, Fundamental Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended.(Article 21)
The President can make laws on the 66 subjects of the State List (which contains subjects on which the state governments can make laws). Also, all money bills are referred to the President for approval. The term of the Lok Sabha can be extended by a period of up to one year, but not so as to extend the term of Parliament beyond six months after the end of the declared emergency.
National Emergency has only been proclaimed in India twice till date. It was declared first in 1962 by President Sarvepalli Radhakrishnan, during the Sino-Indian War. The second emergency in India was from 1975-77 proclaimed by President Fakhruddin Ali Ahmed, with Indira Gandhi as Prime Minister.
If the President is fully satisfied, on the basis of the report of the Governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the Constitution, he can proclaim under Article 356 a state of emergency in the state. Such an emergency must be approved by the Parliament within a period of 2 months.
Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum period of three years with repeated parliamentary approval every six months. If the emergency needs to be extended for more than three years, this can be achieved by a constitutional amendment, as has happened in Punjab and Jammu and Kashmir.
During such an emergency, the President can take over the entire work of the executive, and the Governor administers the state in the name of the President. The Legislative Assembly can be dissolved or may remain in suspended animation. The Parliament makes laws on the 66 subjects of the state list (see National emergency for explanation).
A State Emergency can be imposed via the following:
- By Article 356 – If that state failed to run constitutionally, i.e. constitutional machinery has failed
- By Article 365 – If that state is not working according to the direction of the Union Government issued per the provisions of the constitution.
This type of emergency needs the approval of the parliament within 2 months. It can last up to a maximum of three years via extensions after each 6-month period. However, after one year it can be extended only if
- A state of National Emergency has been declared in the country or in the particular state.
- The Election Commission finds it difficult to organise an election in that state.
The Sarkaria Commission held that presidents have unconstitutionally misused the provision of Article 356 many times for achieving political motives, by dismissing the state governments although there was no constitutional break down in the states. During 2005, President's rule was imposed in Bihar state, misusing Article 356 unconstitutionally to prevent the democratically elected state legislators to form a government after the state elections.
There is no provision in the constitution to re-promulgate president's rule in a state when the earlier promulgation ceased to operate for want of parliaments approval within two months duration. During 2014 in Andhra Pradesh, president's rule was first imposed on 1 March 2014 and it ceased to operate on 30 April 2014. President's rule was promulgated after being fully aware that the earliest parliament session is feasible in the end of May 2014 after the general elections. It was reimposed again unconstitutionally on 28 April 2014 by the president.
Article 282 accords financial autonomy in spending the financial resources available with the states for public purpose. Article 293 gives liberty to states to borrow without any limit to its ability for its requirements within the territory of India without any consent from the union government. However union government can insist for compliance of its loan terms when a state has outstanding loan charged to the consolidated fund of India or an outstanding loan in respect of which a guarantee has been given by the Government of India under the liability of consolidated fund of India.
Under article 360 of the constitution, President can proclaim a financial emergency when the financial stability or credit of the nation or of any part of its territory is threatened. However, until now no guidelines defining the situation of financial emergency in the entire country or a state or a union territory or a panchayat or a municipality or a corporation have been framed either by the finance commission or by the central government.
Such an emergency must be approved by the Parliament within two months by simple majority. It has never been declared. A state of financial emergency remains in force indefinitely until revoked by the President.
The President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts, in cases of a financial emergency. All money bills passed by the State legislatures are submitted to the President for approval. He can direct the state to observe certain principles (economy measures) relating to financial matters.
Article 58 of the Constitution sets the principle qualifications one must meet to be eligible to the office of the President. A President must be:A citizen of India
Of 35 years of age or above
Qualified to become a member of the Lok Sabha
A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
Certain office-holders, however, are permitted to stand as Presidential candidates. These are:The current Vice-President.
The Governor of any State.
A Minister of the Union or of any State (Including Prime Minister and Chief Ministers).
In the event that the Vice-President, a State Governor or a Minister is elected President, they are considered to have vacated their previous office on the date they begin serving as President.
Under The Presidential and Vice-Presidential Elections Act, 1952, a candidate to be nominated for the office of president needs 50 electors as proposers and 50 electors as seconders for his name to appear on ballot.
Certain conditions, per Article 59 of the Constitution, debar an otherwise eligible citizen from contesting the presidential elections. The conditions are:The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
The President shall not hold any other office of profit.
The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
The emoluments and allowances of the President shall not be diminished during his term of office.
Whenever the office becomes vacant, the new President is chosen by an electoral college consisting of the elected members of both houses of Parliament (M.P.s), the elected members of the State Legislative Assemblies(Vidhan Sabha) of all States and the elected members of the legislative assemblies (M.L.A.s) of two Union Territories (i.e., National Capital Territory (NCT) of Delhi and Union Territory of Puducherry). The election process of President is more extensive process than Prime Minister who is also elected indirectly (not elected by people directly) by the Lok Sabha members only. Whereas President being constitutional head with duties to protect, defend and preserve the constitution and rule of law in a constitutional democracy with constitutional supremacy, is elected in an extensive manner by the members of Lok Sabha, Rajya Sabha and state legislative assemblies in a secret ballot procedure.
The nomination of a candidate for election to the office of the President must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Each candidate has to make a security deposit of ₹15,000 (US$220) in the Reserve Bank of India. The security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled.
The election is held in accordance to the system of Proportional representation by means of the Single transferable vote method. The voting takes place by secret ballot system. The manner of election of President is provided by Article 55 of the Constitution.
Each elector casts a different number of votes. The general principle is that the total number of votes cast by Members of Parliament equals the total number of votes cast by State Legislators. Also, legislators from larger states cast more votes than those from smaller states. Finally, the number of legislators in a state matters; if a state has few legislators, then each legislator has more votes; if a state has many legislators, then each legislator has fewer votes.
The actual calculation for votes cast by a particular state is calculated by dividing the state's population by 1000, which is divided again by the number of legislators from the State voting in the electoral college. This number is the number of votes per legislator in a given state. Every elected member of the parliament enjoys the same number of votes, which may be obtained by dividing the total number of votes assigned to the members of legislative assemblies by the total number of elected representatives of the parliament.
Although Indian presidential elections involve actual voting by MPs and MLAs, they tend to vote for the candidate supported by their respective parties.
The President is required to make and subscribe in the presence of the Chief Justice of India (or in his absence, the senior-most Judge of the Supreme Court), an oath or affirmation that he/she shall protect, preserve and defend the Constitution as follows:
The President of India used to receive ₹10,000 (US$100) per month per the Second Schedule of the Constitution. This amount was increased to ₹50,000 (US$700) in 1998. On 11 September 2008 the Government of India increased the salary of the President to ₹1.5 lakh (US$2,200). However, almost everything that the President does or wants to do is taken care of by the annual ₹225 million (US$3.3 million) budget that the Government allots for his or her upkeep. Rashtrapati Bhavan, the President's official residence, is the largest Presidential Palace in the world. The Rashtrapati Nilayam at Bolarum, Hyderabad and Retreat Building at Chharabra, Shimla are the official Retreat Residences of the President of India. The official state car of the President is a custom-built heavily armoured Mercedes Benz S600 (W221) Pullman Guard.
The former presidents and spouses of deceased Presidents are eligible for pension, furnished accommodation, security, various allowances, etc.
Supreme Court shall inquire and decide regarding all doubts and disputes arising out of or in connection with the election of a President per Article 71(1) of the constitution. Supreme Court can remove the president for the electoral malpractices or upon being not eligible to be Lok Sabha member under the Representation of the People Act, 1951. Subject to Article 71 (3), Parliament made applicable rules/procedure to petition the Supreme Court for resolving the disputes only that arise during the election process of the president but not the doubts that arise from his unconstitutional actions/deeds or changing Indian citizenship during the tenure of president which may violate the requisite election qualifications.
The President may also be removed before the expiry of the term through impeachment for violating the Constitution of India. The process may start in either of the two houses of the Parliament. The house initiates the process by levelling the charges against the President. The charges are contained in a notice that has to be signed by at least one quarter of the total members of that house. The notice is sent up to the President and 14 days later, it is taken up for consideration.
A resolution to impeach the President has to be passed by a two-third majority of the total number of members of the originating house. It is then sent to the other house. The other house investigates the charges that have been made. During this process, the President has the right to defend oneself through an authorised counsel. If the second house also approves the charges made by special majority again, the President stands impeached and is deemed to have vacated his/her office from the date when such a resolution stands passed. No president has faced impeachment proceedings so the above provisions have never been used.
Under Article 361 of the constitution, though president can not be summoned for questioning except on his voluntary willingness to testify in the court in support of his controversial deeds, the unconstitutional decisions taken by the president would be declared invalid by the courts. The case would be decided by the courts based on the facts furnished by the union government for the president's role. As clarified by the Supreme Court in the case 'Rameshwar Prasad & Ors vs Union Of India & Anr on 24 January 2006', though president can not be prosecuted and imprisoned during his term of office, he can be prosecuted after he/she steps down from the post for the guilty committed during the term of presidency as declared earlier by the courts. No president has resigned on impropriety to continue in office for declaring and nullifying his unconstitutional decisions by the courts till now. No criminal case at least on the grounds of disrespecting constitution is lodged till now against former presidents to punish them for their unconstitutional acts though many decisions taken during the term of presidency had been declared by Supreme Court as unconstitutional, mala fides, void, ultra vires, etc.
The Office of the President falls vacant in the following scenarios:
- On the expiry of his/her term
- By reason of death
- By reason of resignation
- Removal by Supreme Court
- Removal by impeachment
Article 65 of the Indian Constitution says that the Vice-President of India will have to discharge the duties, if the Office falls vacant due to any reason other than expiry of the term. The Vice-President reverts to office when a new President is elected and enters office. When the President is unable to act because of absence, illness or any other cause, the Vice-President discharges the President's functions until the President resumes the duties.
A Vice-President who acts as or discharges the functions of the President has all the powers and immunities of the President and is entitled to the same emoluments as the President. It should be noted here that when the Vice-President discharges the duties of the President, he/she does not function as the Chairperson of the Rajya Sabha.
The Indian Parliament has enacted the law (The President (Discharge of Functions) Act, 1969) for the discharge of the functions of the President when vacancies occur in the offices of the President and of the Vice-President simultaneously, owing to removal, death, resignation of the incumbent or otherwise. In such an eventuality, the Chief Justice, or in his absence, the senior most Judge of the Supreme Court of India available discharges the functions of the President until a newly elected President enters upon his office or a newly elected Vice-President begins to act as President under Article 65 of the Constitution, whichever is the earlier. For example, in 1969, when President Zakir Husain died in Office, Vice-President V. V. Giri served as the acting President of India. However, later, V.V Giri resigned from both posts (Acting President of India and Vice-President of India) as he became a candidate in the 1969 Presidential election in India. In this event, the then Chief Justice of India, Justice Mohammad Hidayatullah served as the acting President of India until the next President was elected.
The President's role as defender of the Constitution and the powers as Head of State, especially in relation to those exercised by the Prime Minister as leader of the government, have changed over time. In particular, Presidents have made a number of interventions into government and lawmaking, which have established and challenged some conventions concerning Presidential intervention.
In 1979, the Prime Minister, Charan Singh, did not enjoy a Parliamentary majority. He responded to this by simply not advising the President to summon Parliament. Since then, Presidents have been more diligent in directing incoming Prime Ministers to convene Parliament and prove their majority within reasonable deadlines (2 to 3 weeks). In the interim period, the Prime Ministers are generally restrained from making policy decisions.
Since the 1990s, Parliamentary elections have generally not resulted in a single party or group of parties having a distinct majority, until the 2014 Lok Sabha elections when BJP received a clear majority. In such cases, Presidents have used their discretion and directed Prime Ministerial aspirants to establish their credentials before being invited to form the government. Typically, the aspirants have been asked to produce letters from various party leaders, with the signatures of all the MPs who are pledging support to their candidature. This is in addition to the requirement that a Prime Minister prove he has the support of the Lok Sabha (by a vote on the floor of the House) within weeks of being sworn into office.
Since the Indian Constitution does not provide any time limit within which the President is to declare his assent or refusal, the President could exercise a "pocket veto" by not taking any action for an indefinite time. The veto was used in 1986 by the then President Zail Singh over the Postal Bill. The President did not give assent to the bill, arguing that its scope was too sweeping and would give the government arbitrary powers to intercept postal communications indiscriminately.
In the late 1990s, President K. R. Narayanan introduced explaining to the nation (by means of Rashtrapati Bhavan communiqués), the thinking that led to the various decisions he took while exercising his discretionary powers; this has led to openness and transparency in the functioning of the President.
The constitution gives the President the power to return a bill unsigned but it circumscribes the power to send it back only once for reconsideration. If the Parliament sends back the bill with or without changes, the President is obliged to sign it. In mid-2006, President Dr.A. P. J. Abdul Kalam sent back a controversial bill regarding the exclusion of certain offices from the scope of 'offices of profit', the holding of which would disqualify a person from being a member of parliament. The combined opposition, the NDA, hailed the move. The UPA chose to send the bill back to the president without any changes and, after 17 days, Kalam gave his assent on 18 August 2006.
Arunachal Pradesh governor who was earlier appointed by the ruling party at the centre, has been sacked by the President after the Supreme Court has quashed his unconstitutional acts.