The President of India (Articles 52-62)

The President

Upon gaining independence, India initially adopted dominion status within the Commonwealth nations, with King George VI as its head. The Governor General represented his authority in India. Under the leadership of B.R. Ambedkar, the Constituent Assembly drafted the Constitution, which came into effect in January 1950, declaring India a republic. During the drafting process, the Assembly faced the question of the head of state.

The Constitution makers did not adhere to any single model but drew from various constitutions worldwide to select the most suitable features. The office of the President exemplifies this approach, blending elements from both the British Crown and the American Presidency.

In India, the President serves as the ceremonial head of state, similar to the British monarch, while also possessing certain executive powers akin to the American President. This unique blend was crafted to accommodate India’s socio-political context and ensure effective governance.The President of India is the first citizen of India. 

In Constitution of India, Chapter 1 (The Executive) of Part V (The Union) deals with election, qualification, term of office, Oath and affirmation and impeachment of the President. It also deals with the office of the Vice President.

Election of The President

The President is elected not directly by the people but by members of electoral college consisting of:

1. the elected members of both the Houses of Parliament;
2. the elected members of the legislative assemblies of the states;
   and
3. the elected members of the legislative assemblies of the Union
   Territories of Delhi and Puducherry

Note: Thus, the nominated members of both of Houses of Parliament, the nominated members of the state legislative assemblies, the members (both elected and nominated) of the state legislative councils (in case of the bicameral legislature) and the nominated members of the Legislative Assemblies of Delhi and Puducherry do not participate in the election of the President.

The Constitution provides that there shall be uniformity in the scale of representation of different states as well as parity between the states as a whole and the Union at the election of the President.

• Every elected member of the legislative assembly of a state shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the state by the total number of the elected members of the assembly
• Every elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to members of the legislative assemblies of the states by the total number of the elected members of both the Houses of Parliament.

The President’s election is held in accordance with the system of proportional representation by means of the single transferable vote and the voting is by secret ballot.

All doubts and disputes in connection with election of the President are inquired into and decided by the Supreme Court whose decision is final (Article 71). The election of a person as President cannot be challenged on the ground that the electoral college was incomplete (ie, existence of any vacancy among the members of electoral college). If the election of a person as President is declared void by the Supreme Court, acts done by him before the date of such declaration of the Supreme Court
are not invalidated and continue to remain in force.

Qualifications for Election as President

A person to be eligible for election as President should fulfil the following qualifications:

1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a member of the LokSabha.
4. He should not hold any office of profit under the Union government or any state government or any local authority or any other public authority. A sitting President or VicePresident of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit and hence qualified as a presidential candidate.

The nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders.

Oath or Affirmation by the President

Before entering upon his office, the President has to make and subscribe to an oath or affirmation. The oath of office to the President is administered by the Chief Justice of India and in his absence, the seniormost judge of the Supreme Court available. In his oath, the President swears:

1. to faithfully execute the office;
2. to preserve, protect and defend the Constitution and the law;
   and
3. to devote himself to the service and well-being of the people of
   India.

Conditions of President’s Office

The Constitution lays down the following conditions of the President’s office:

1. He should not be a member of either House of Parliament or a House of the state legislature. If any such person is elected as President, he is deemed to have vacated his seat in that House
   on the date on which he enters upon his office as President.
2. He should not hold any other office of profit.
3. He is entitled, without payment of rent, to the use of his official residence (the Rastrapathi Bhavan).
4. He is entitled to such emoluments, allowances and privileges as may be determined by Parliament.
5. His emoluments and allowances cannot be diminished during his term of office.

The President 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. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

Term of President’s Office

The President holds office for a term of five years from the date on which he enters upon his office. However, he can resign from his office at any time by addressing the resignation letter to the Vice-
President. Further, he can also be removed from the office before completion of his term by the process of impeachment.

The President can hold office beyond his term of five years until his successor assumes charge. He is also eligible for re-election to that office. He may be elected for any number of terms. However, in USA, a person cannot be elected to the office of the President more than twice.

Impeachment of President

The President can be removed from office by a process of impeachment for ‘violation of the Constitution’. However, the Constitution does not define the meaning of the phrase ‘violation of
the Constitution’.

The impeachment charges can be initiated by either House of Parliament. These charges should be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice should be given to the President. After the impeachment resolution is passed by a majority of two-thirds of the total membership of that House, 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 two-thirds of the total membership, then the President stands removed from his office from the date on which the resolution is so passed.

In this context, two things should be noted:

• (a) the nominated members of either House of Parliament can participate in the impeachment of the President though they do not participate in his election;
• (b) the elected members of the legislative assemblies of states and the Union Territories of Delhi and Puducherry do not participate in the impeachment of the President though they participate in his election.

Vacancy in the President’s Office

When the vacancy is going to be caused by the expiration of the term of the sitting President, an election to fill the vacancy must be held before the expiration of the term. In case of any delay in
conducting the election of new President by any reason, the outgoing President continues to hold office (beyond his term of five years) until his successor assumes charge. This is provided by the Constitution in order to prevent an ‘interregnum’. In this situation, the Vice-President does not get the opportunity to act as President or to discharge the functions of the President.

If the office falls vacant by resignation, removal, death or otherwise, then election to fill the vacancy should be held within six months from the date of the occurrence of such a vacancy.

When a vacancy occurs in the office of the President due to his resignation, removal, death or otherwise, the Vice-President acts as the President until a new President is elected.

Constitutional Provisions Related To The President

Powers And Functions Of The President

The powers enjoyed and the functions performed by the President can be studied under the following heads.

1. Executive powers
2. Legislative powers
3. Financial powers
4. Judicial powers
5. Diplomatic powers
6. Military powers
7. Emergency powers

Executive Powers

The executive powers and functions of the President are:

1. All executive actions of the Government of India are formally taken in his name (Article 77).
2. He can make rules specifying the manner in which the orders and other instruments made and executed in his name shall be authenticated (Article 77).
3. He can make rules for more convenient transaction of business of the Union government, and for allocation of the said business among the ministers (Article 77).
4. He appoints the prime minister and the other ministers. They hold office during his pleasure (Article 75).
5. He appoints the attorney general of India and determines his remuneration. The attorney general holds office during the pleasure of the President (Article 76).
6. He appoints the comptroller and auditor general of India, the chief election commissioner and other election commissioners, the chairman and members of the Union Public Service Commission, the governors of states, the chairman and members of finance commission, and so on.
7. He can seek any information relating to the administration of affairs of the Union, and proposals for legislation from the prime minister (Article 78).
8. He can require the Prime Minister to submit, for consideration of the council of ministers, any matter on which a decision has been taken by a minister but, which has not been considered by the council (Article 78).
9. He can appoint a commission to investigate into the conditions of SCs, STs and other backward classes.
10. He can appoint an inter-state council to promote Centre-state and inter-state cooperation.
11. He directly administers the union territories through administrators appointed by him.
12. He can declare any area as scheduled area and has powers with respect to the administration of scheduled areas and tribal areas.

Legislative Powers

The President is an integral part of the Parliament of India, and enjoys the following legislative powers:

1. He can summon or prorogue the Parliament and dissolve the Lok Sabha. He can also summon a joint sitting of both the Houses of Parliament, which is presided over by the Speaker of the Lok Sabha (Article 85).
2. He can address the Parliament at the commencement of the first session after each general election and the first session of each year.
3. He can send messages to the Houses of Parliament, whether with respect to a bill pending in the Parliament or otherwise.
4. 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. Similarly, he 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.
5. He nominates 12 members of the Rajya Sabha from amongst persons having special knowledge or practical experience in literature, science, art and social service.
6. He decides on questions as to disqualifications of members of the Parliament, in consultation with the Election Commission.
7. His prior recommendation or permission is needed to introduce certain types of bills in the Parliament. For example, a bill involving expenditure from the Consolidated Fund of India, or a bill for the alteration of boundaries of states or creation of a new state.
8. When a bill is sent to the President after it has been passed by the Parliament (Article 111), he can:
   • (i) give his assent to the bill, or
   • (ii) withhold his assent to the bill, or
   • (iii) return the bill (if it is not a money bill) for reconsideration of Parliament. However, if the bill is passed again by the Parliament, with or without amendments, the President has to give his assent to the bill.
9. When a bill passed by a state legislature is reserved by the governor for consideration of the President, the President can:
   • (i) give his assent to the bill, or
   • (ii) withhold his assent to the bill, or
   • (iii) direct the governor to return the bill (if it is not a money bill) reconsideration of the state legislature. It should be noted that it is not obligatory for the President to give his assent even the bill is again passed by the state legislature and sent again to him for his consideration.
10. He can promulgate ordinances when the Parliament is not in session. These ordinances must be approved by the Parliament within six weeks from its reassembly. He can also withdraw an ordinance at any time (Article 123).
11. He lays the reports of the Comptroller and Auditor General, Union Public Service Commission, Finance Commission, and others, before the Parliament.

Financial Powers

The financial powers and functions of the President are:

• (a) Money bills can be introduced in the Parliament only with his prior recommendation.
• (b) He causes to be laid before the Parliament the annual financial statement (ie, the Union Budget) (Article 112).
• (c) No demand for a grant can be made except on his recommendation.
• (d) He can make advances out of the contingency fund of India to meet any unforeseen expenditure.
• (e) He constitutes a finance commission after every five years to recommend the distribution of revenues between the Centre and the states.

Judicial Powers

The judicial powers and functions of the President are:

• (a) He appoints the Chief Justice and the judges of Supreme Court and high courts.
• (b) He can seek advice from the Supreme Court on any question of law or fact. However, the advice tendered by the Supreme Court is not binding on the President.
• (c) He can grant pardon, reprieve, respite and remission of punishment, or suspend, remit or commute the sentence of any person convicted of any offence (Article 72):
  • (i) In all cases where the punishment or sentence is by a court martial;
  • (ii) In all cases where the punishment or sentence is for an offence against a Union law; and
  • (iii) In all cases where the sentence is a sentence of death

Diplomatic Powers

• The international treaties and agreements are negotiated and concluded on behalf of the President. However, they are subject to the approval of the Parliament.
• He represents India in international forums and affairs and sends and receives diplomats like ambassadors, high commissioners, and so on.

Military Powers

• He 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

• In addition to the normal powers mentioned above, the Constitution confers extraordinary powers on the President to deal with the following three types of emergencies:
  • (a) National Emergency (Article 352);
  • (b) President’s Rule (Article 356 & 365); and
  • (c) Financial Emergency (Article 360)

Veto Powers of The President

Absolute Veto

• It refers to the power of the President to withhold his assent to a bill passed by the Parliament. The bill then ends and does not become an act.

Suspensive Veto

The President exercises this veto when he returns a bill for reconsideration of the Parliament. However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, it is obligatory for the President to give his assent to the bill. This means that this presidential veto is overridden by a repassage of the bill by the same ordinary majority (and not a higher majority as required in USA (Qualified Veto)).

This veto power is not available in 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

In this case, the President neither ratifies nor rejects nor returns the bill, but simply keeps the bill pending for an indefinite period. This power of the President not to take any action (either positive or
negative) on the bill is known as the pocket veto.

Note: It should be noted here that the President has no veto power in respect of a constitutional amendment bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill.

Pardoning Power of The President

The pardoning power of the President (Article 72) includes the following:

• Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
• Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
• Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
• Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
• Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Ordinance Making Power of The President

Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.

• If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
• An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—
  • (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
  • (b) may be withdrawn at any time by the President.

Note: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.