President of India

The President of India is the head of state of the Republic of India. The president is the nominal head of the executive, as well as the commander-in-chief of the Indian Armed Forces.

The president is the first citizen of the country.

The office of president was created when India became a republic on 26 January 1950, when its constitution came into force.

Powers and duties

Duties

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).

All his actions, recommendations (Article 3, Article 111, Article 274, etc.) and supervisory powers (Article 74(2), Article 78C, 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 powers

Legislative power is constitutionally vested in the Parliament of India of which the president is the head, to facilitate the lawmaking process per the constitution (Article 78, Article 86, etc.). The president summons both the houses (Lok Sabha and Rajya Sabha) 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 the 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 the prime minister or council of ministers per Article 74 if it is inconsistent with the constitution.

Article 143 gives the president the power to consult the supreme court about the constitutional validity of an issue. The president shall assent to 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 that 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, the 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 the 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 the law are inadequate. Re-promulgation of an ordinance after failing to get approval within the stipulated time of both houses of parliament is an unconstitutional act by the president. The president should not incorporate any matter in an ordinance which violates the constitution or requires an amendment to the constitution. The president should take moral responsibility when an ordinance elapses automatically or is not approved by the parliament or violates the constitution.

Executive powers

The President is generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can do anything without their advice. The President has no power to dismiss any Minister as long as the Ministers command a majority in Parliament

As per Article 53, the executive power of the country is vested in the president and is exercised by the 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 advise the president in performing his functions. As 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 the union cabinet.

As per Article 142, it is the duty of the president to enforce the decrees of the supreme court.

Although Article 53 of the Constitution of India states that the president can exercise his powers directly or by subordinate authority, with few exceptions, all of the executive powers vested in the president are, in practice, exercised by the prime minister (a subordinate authority) with the help of the Council of Ministers. The president is bound by the constitution to act on the advice of the prime minister and cabinet as long as the advice does not violate the constitution.

Judicial powers

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 India and other judges on the advice of the chief justice. The President may dismiss a judge with a two-thirds vote of the two Houses of the parliament.

The Indian government’s chief legal adviser, Attorney General of India, 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, the president can ask the attorney general to attend the parliamentary proceedings and report to him any unlawful functioning if any.

Appointment powers

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. The president may nominate not more than two members of Anglo Indian community as Lok Sabha members per Article 331

Governors of states are also appointed by the president who shall work at the pleasure of the president. Per Article 156, the 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 and other judges of the Supreme Court of India and state/union territory high courts.
The Chief Minister of the National Capital Territory of Delhi (Article 239 AA 5 of the constitution).
The Comptroller and Auditor General.
The Chief Election Commissioner and other Election Commissioners.
The chairman and other members of the Union Public Service Commission.
The Attorney General.
Ambassadors and High Commissioners to other countries (only through the list of names given by the prime minister).
Officers of the All India Services (IAS, IPS and IFoS), and other Central Civil Services in Group ‘A’.

Financial powers

A financial 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 every five years to recommend the distribution of the taxes between the centre and the States.

Diplomatic powers

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 Minister of External Affairs). 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.

Military powers

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.

Pardoning powers

As mentioned in Article 72 of the Indian constitution, the president is empowered with the powers to grant pardons in the following situations:

punishment for an offence against Union law
punishment by a military court
a death sentence

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.

Emergency powers

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.

National emergency

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).

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 at least a 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 been proclaimed 3 times in India to date. It was declared first in 1962 by President Sarvepalli Radhakrishnan, during the Sino-Indian War. This emergency lasted through the Indo-Pakistani War of 1965 and up to 1968. It was revoked in 1968. The second emergency in India was proclaimed in 1971 by President V. V. Giri on the eve of the Indo-Pakistani War of 1971. The first two emergencies were in the face of external aggression and War. They were hence external emergencies. Even as the second emergency was in progress, another internal emergency was proclaimed by President Fakhruddin Ali Ahmed, with Indira Gandhi as prime minister in 1975. In 1977, the second and the third emergencies were together revoked.

State emergency (President Rule)

If the president is not 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.

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. When a state emergency is imposed under this provision, the state is said to be under “President’s rule.
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 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 parliament’s 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 at the end of May 2014 after the general elections. It was reimposed again unconstitutionally on 28 April 2014 by the president.

Financial emergency

Article 282 accords financial autonomy in spending the financial resources available with the states for public purposes. 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, the Union government can insist on compliance with its loan terms when a state has an 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, the president can proclaim a financial emergency when the financial stability or credit of the nation or 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 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 a 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 state legislatures are submitted to the president for approval. He can direct the state to observe certain principles (economy measures) relating to financial matters.

Election of President

Eligibility

Article 58 of the constitution sets the principal 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 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.
A member of parliament or a State Legislature can seek election to the office of the president but if he is elected as president, he shall be deemed to have vacated his seat in parliament or State Legislature on the date on which he enters upon his office as President [Article 59(1)].

Article 57 provides that a person who holds, or who has held, office as president shall, subject to the other provisions of this constitution, be eligible for re-election to that office.

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 the ballot.

Time of election

Article 56(1) of the constitution provides that the president shall hold office for a term of five years from the date on which he enters his office. According to Article 62, an election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term. An election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of occurrence of the vacancy; and the person elected to fill the vacancy shall, subject to the provisions of Article 56, be entitled to hold office for the full term of five years from the date on which he enters upon his office. To meet the contingency of an election to the office of President not being completed in time due to unforeseen circumstances like countermanding of an election due to death of a candidate or on account of the postponement of the poll for any valid reason, Article 56(1)(c) provides that the president shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

Conditions

Certain conditions, per Article 59 of the Indian 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 the parliament or a house of the legislature of any state, and if a member of either house of the parliament or a house of the legislature of any state is 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.

Election process

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 (MLAs) of union territories with legislatures, i.e., National Capital Territory (NCT) of Delhi, Jammu and Kashmir, and Puducherry.

The election process of the president is a more extensive process than of the prime minister who is also elected indirectly (not elected by people directly) by the Lok Sabha members only. Whereas President being the 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 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 with the system of proportional representation (PR) by means of the instant-runoff voting (IRV) method. The voting takes place by a 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 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.

Oath or affirmation

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 to protect, preserve and defend the constitution.

Emoluments

The president of India used to receive ₹10,000 per month per the Second Schedule of the constitution. This amount was increased to ₹50,000 in 1998. On 11 September 2008, the Government of India increased the salary of the president to ₹1.5 lakh. This amount was further increased to ₹5 lakh in the 2018 Union budget of India.

The former presidents and widows and widowers of presidents are eligible for pension, furnished accommodation, security, various allowances, etc.

Impeachment of the President

The 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. The Supreme Court can remove the president for the electoral malpractices or upon being not eligible to be a member of the Lok Sabha 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 the 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 by the Parliament 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-thirds 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 himself through an authorised counsel. If the second house also approves the charges made by the special majority again, the president stands impeached and is deemed to have vacated their office from the date when such a resolution stands passed. No president has faced impeachment proceedings so the above provisions have never been used.

Succession

The Office of the president falls vacant in the following scenarios:

On the expiry of their term.
By reason of death.
By reason of resignation.
Removal by the 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 the expiry of the term. The vice-president reverts to their 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. When a 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 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.

Limitations of the President

Legislature – Any bill passed by parliament can either be signed, withheld or returned to parliament by the president of India. If the president signs, it becomes a law. If the president returns or withholds the bill till expiry and the same bill is again introduced and passed in the parliament, it automatically becomes a law without the president’s signature.

Executive – Although the president is bound by the constitution to act on the advice of the prime minister, it is ultimately the president who gives the final order. Hence, declining the prime minister’s advice or withholding it for long without being able to constitutionally challenge this decision is beyond the power of the president. Similarly, the prime minister can object to any decision taken alone by the President without consulting the cabinet.

Judiciary – Only the judiciary has the power to convert a death sentence to life imprisonment.