Breaking down the Basics
Part V of the Constitution (The Union) under Chapter I (The Executive) lists out the qualification, election and impeachment of the President of India.
President of India is the non-hereditary head of the State of the Republic of India.
The President is the formal head of the Executive, Legislature and Judiciary of India.
President is also the commander-in-chief of the Indian Armed Forces.
All executive actions are taken in his name (Article 77).
The President can exercise his or her powers directly or by subordinate authority, with few exceptions (Article 53 of Constitution; however, in practice, all of the executive authority vested in the President are exercised by the Council of Ministers (CoM)).
Election/Appointment of President of India
Head of State is elected through indirect elections, i.e. not elected directly by the people.
(Council of Ministers headed by the Prime Minister is the real executive.
Directly elected president might emerge as a parallel center of power to the Prime Minister, thereby causing constitutional chaos.)
Process of Election of the President (Article 54)
President is elected by the members of an electoral college consisting of:
the elected members of both Houses of Parliament
the elected members of the Legislative Asseblies of the States
In Articles 54 and 55, “State” includes the National Capital Territory of Delhi and the Union territory of Pondicherry (no other Union Territory included.)
Manner of Election:
The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote (Article 55(3)).
In order to give both the Union and the states equal voting Article 55 provides for a formula to ensure, as far as possible, that –
There should be a uniformity in the scale of representation of the different states in the election (vote of MLA of 1 state = vote of MLA of the 2nd state)
Parity should be maintained between the representation of the states as a whole and the Union (Vote of MPs = votes of all the MLAs)
Formula has been devised to ensure uniformity by scaling the value of votes of MLAs from different states based on the respective state’s population.
Suspension of Election – Even if a state assembly has been dissolved under Article 356 (Provisions in case of failure of Constitutional Machinery in States), that shall not be a ground to postpone/cancel the Presidential election (Article 71(4))
Disputes concerning Presidential election will be decided by the Supreme Court (Article 71(1))
A person may be eligible for re-election to the Office of the President subject to the provisions of the Constitution (Article 57)
Term of Office (Article 56)
The President shall hold office for a term of five years from the date on which he enters upon his office, povided that
the President may, by writing under his hand addressed to the Vice-President, resign his office
the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in Article 61
the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office
Impeachment – Article 61
The President can be impeached in case of ‘violation of the Constitution of India’ upon a charge preferred by either House of Parliament.
Such a vague charge makes impeachment exceptionally difficult. Further, the process of impeachment is equally complicated, making such an impeachment nearly impossible.
Fourteen days’ written notice of the intention to move the motion is given to the President signed by not less than 1/4th of the total members of the house.
The resolution is to be passed by not less than 2/3rd majority of the total membership of the house.
The other House shall investigate the charge/cause the charge to be investigated and the President shall have the right to appear and be represented during such investigation.
If, as a result of the investigation, a resolution is formulated declaring that the charge preferred against the President as having been sustained, it must be passed by not less than 2/3rd majority of total membership of the House by which the charge was investigated or caused to be investigated.
Such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.
Powers and Perks of the President
Not answerable to any court for any act done by him while exercising the power and duty of his office. (Art. 361(1))
For any act done by Him, it is the Government of India that is brought in front of the court to defend its validity. Immunity is personal to the president. (Art. 361)
No criminal proceedings can be instituted against the President during his term of office (Art. 361(2))
No process for arrest or imprisonment of the President can issue from any court during his term of office.
For his personal acts done during the course of his office, no civil proceedings can be instituted unless a two months’ notice in writing has been served on him (Art. 361(4))
Relationship with Union Council of Ministers
While Article 53(1) vests the executive power of the Union of India in the President. the President acts on the advice of the Prime Minister and the Council of Ministers, i.e. the elected representatives of the people. Thus, as India follows the Parliamentary form of Government, the real power of the executive lies with the Council of Ministers headed by the Prime Minister. This proves that India follows the Parliamentary system of governance with certain features of federalism. (Ram Jawaya Kapoor v. State of Punjab)
Under Article 77, all executive actions are taken in the name of the President, however in reality as per Article 74(1), the President is required to (“SHALL”) carry out his functions with the aid and advice of the CoM (42nd Amendment Act, 1976). Moreover, the courts cannot inquire into the advice so tendered by the CoM to the president [Article 74(2)] (This is also in line with the Separation of Powers doctrine).
U/a 75(1) President appoints the PM and other CoM on advice of the PM. Article 75(2) makes the ministers individually responsible to the President as they hold the office during his pleasure, and this in turn helps to achieve collective responsibility of the CoM.
Why made binding? – Article 75(3) makes the CoM collectively responsible to the Lok Sabha. However, there is no provision in the Constitution which makes President answerable to the Legislature. Therefore, it will be meaningless to hold the CoM answerable for their policy decisions without giving them the necessary authority enforce the decisions.
What happens if the advice is rejected?
Article 74(1) is not legally enforceable because Article 361 bans any such legal action on the acts done by the President while dispensing the powers and duties of his office.
However, such a situation can lead to Constitutional chaos as firstly, either the CoM/ PM may resign creating a vacuum whereby the President then has to find a government that can command the majority and secondly impeachment proceedings against him can be initiated u/a 61 for violating the constitution.
Further, the President will also not be able to incur any expenditure in case of conflict with CoM because they command majority in Lok Sabha which in turns controls the executive purse.
Article 74(1) is a mandatory provision and at no point can President dispense is function without the Council of Ministers. Applying this rationale, the SC in U.N. Rao v. Indira Gandhi held that it is essential to have a CoM to aid and advise the President even when the Lok Sabha has been dissolved.
In Shamsher Singh v. State of Punjab, the court held that wherever the Constitution requires the satisfaction of the President, it is not his personal satisfaction, but it is satisfaction in the constitutional sense under the cabinet form of government i.e. satisfaction of CoM. In this case, Justice Krishna Iyer in his separate concurring judgment stated that there are few exceptions (listed below) to the above stated rule i.e. President in some situations has a little scope of discretion or may not adhere to the advice given by CoM:
Choosing the Prime Minister when no party wins a majority in the election.
Dismissal of a government which has lost the majority in the house but refuses to quit.
Dissolution of the lower house when an appeal to the nation has become necessary i.e., he has reasonable ground to believe that the Government, though enjoying majority in the Lok Sabha, has lost the support of the people.
Veto Powers of the President (Discretionary Power)
The power of Veto refers to the power of the executive to override any act of the legislature. This is a very special privilege. Veto power in modern States can of the following types –
1. Absolute Veto – Withholding of assent to the Bill passed by the legislature.
When the President exercises his absolute veto, a bill never sees the day of the light. The bill ends even after passed by the Indian Parliament and does not become an act.
President uses his absolute veto in the following two cases:
When the bill passed by the Parliament is a Private Member Bill;
When the cabinet resigns before President could give his assent to the bill. The new cabinet may advise the President to not give his assent to the bill passed by the old cabinet.
POI: In India, the President has exercised his absolute veto before. In 1954, it was exercised by Dr. Rajendra Prasad as a President and later in 1991, it was used by the then President R Venkataraman.
2. Qualified Veto – Which can be overridden by the legislature with a higher majority.
Indian President doesn’t have qualified veto. It is possessed by the President of America.
3. Suspensive Veto – Which can be overridden by the legislature with an ordinary majority.
This Veto is exercised when the President returns a bill for reconsideration of Parliament. It does not end the bill but just delays the passage of the bill.
If bill is passed again by Parliament with/without amendments and presented to the President, the President has to give his assent to the bill.
President does not possess Suspensive Veto in case of money bills.
POI: President APJ Abdul Kalam used suspensive veto and retuned the Office of Profit Bill. However, it was once again presented to the President at which point the bill had to be signed into a law.
4. Pocket Veto – Taking no action on the Bill passed by the legislature.
President neither ratifies nor rejects nor returns the Bill, but keeps it pending for an indefinite period of time.
Constitution does not prescribe any time limit within which President has to make a decision with respect to a Bill presented for assent. This power is not available to the President of USA, who is required to return the bill within 10 days for reconsideration. Hence the saying that “The pocket of the Indian President is bigger than that of the American President.”
The 24th Constitutional Amendment Act of 1971 made it mandatory for the President to give his assent to a constitutional amendment bill.
POI: Gyani Zail sigh used the pocket veto to not sign the Indian Postal Bill Amendment Bill, 1986. Same was done by President R. Venkataraman.
It is to be noted that the limited discretion which is enjoyed by the President is incidental and not intentional, implicit and not explicit, situational and not Constitutional.
Constitutional Position / Whether a mere titular head?
How much executive power does the President of India actually enjoy?
India, similar to Great Britain, follows the Parliamentary/Cabinet form of Government as opposed to the Presidential form followed by the United States of America.
Unlike the USA, the President of India is not the real head of executive or Government.
Real executive powers lie with the Council of Ministers (CoM) headed by the Prime Minister.
However, the President is not merely a rubber stamp.
President is a symbol of Indian national unity.
As each MLA’s presidential ballot is weighted by population, all citizens are indirectly involved in his election making President the only nationally elected public official in India.
President exerts influence over decisions of the Ministry. According to SC he has the right to “warn and encourage” them about major policy decisions.