Laxmikanth Polity

Chapter 17 – The President

PART V – The Union

Chapter I. – The Executive
The President and Vice-President
(Sub-Chapter – 1; Covered Articles – 52-62 and 71-72)
Conduct of Government Business
(Sub-Chapter – 4)

Chapter III. – Legislative Powers of the President

1. Article 52 - The President of India 3

2. Constitutional Position of the President 3

• Dr. B.R. Ambedkar on the true position of the president 3
• Provisions related to constitutional position of the president 4
• Situational discretionary powers enjoyed by the president 5

3. Powers/Functions of the President 6

1) Executive in Article 77 and 78 6
Article 77 – Conduct of business of government of India 6
Article 78 – Duties of Prime Minister as respects the furnishing 6
the information to the President, etc.

2) Executive Powers (related to making appointments) 7

 3) Executive Powers (related to administration of Scheduled 8
and Tribal Areas)

4) Military Powers 8
Article 53 – Executive power of the President 8

5) Legislative power in Article 111 and Article 200 (related to 9

Veto Power)

6) Legislative Powers in article 123 (related to promulgation of 13

Ordinances)
Article 123 – Power of President to promulgate Ordinances 13
during recess of Parliament

7) Other Legislative Powers 16

8) Financial Powers 19

9) Judicial Powers 20

10) Executive Power in Article 72 (related to grant of pardons etc. 20

and thereby connected with Judiciary)

11) Diplomatic Powers 23

12) Emergency Powers 23

4. Election of the President 24

1) Article 54 – Election of the President 24
2) Article 55 – Manner of Election of President 25
3) Single Transferrable Vote System 26
4) Article 71 – Matters relating to, or in connection with, the 29
election of a President or Vice-President
5. President in Office 30
1) Article 56 – Term of office of President 30
2) Article 57 – Eligibility of re-election 30
3) Article 58 – Qualification for election as President 30
4) Article 59 – Conditions of President’s Office 31
5) Article 60 – Oath or affirmation by the President 32

6. Impeachment and Vacancy 33

1) Article 61 – Procedure for impeachment of the President 33
2) Article 62 – Time of holding election to fill vacancy in the office 34
of President and the term of office of person elected to fill the
vacancy
1. Article 52 - The President of India
There shall be a President of India.
The President is the head of the Indian State. He is the 1st citizen of India.

2. Constitutional Position of the Government

DR. B.R. AMBEDKAR ON THE TRUE POSITION OF THE PRESIDENT:
“In the Draft Constitution there is placed at the head of the Indian Union a
functionary who is called the President of the Union. The title of this functionary
reminds one of the Presidents of the United States. But beyond identity of names
there is nothing in common between the forms of Government prevalent in
America and the form of Government proposed under the draft Constitution. The
American form of Government is called the Presidential system of Government.
What the draft Constitution proposes is the Parliamentary system. The two are
fundamentally different.
Under the Presidential system of America, the President is the Chief head of the
Executive. The administration is vested in him. Under the Draft Constitution the
President occupies the same position as the King under the English Constitution.
He is the head of the State but no of the Executive. He represents the Nation but
does not rule the Nation. He is the symbol of the Nation. His place in the
administration is that of a ceremonial device on a seal by which the nation’s
decision are made known. Under the American Constitution the President has
under him Secretaries in charge of different Departments. In like manner the
President of Indian Union will have under him Ministers in charge of different
Departments of administration. Here again there is a fundamental difference
between the two. The President of the United States is not bound to accept any
advice tendered to him by any of the Secretaries. The President of the Indian Union
will be generally bound by the advice of his Ministers. He can do nothing contrary
to their advice nor he can do any thing without their advice. The President of the
United States can dismiss any Secretary at any time. The President of Indian Union
has no power to do so long as his Ministers command a majority in Parliament.”

PROVISIONS RELATED TO CONSTITUTIONAL POSITION OF THE PRESIDENT:

➢ Article 74 – Council of Ministers to aid and advice President –
(1) There shall be a Council of Ministers with the Prime Minister at the head to
aid and advice the President [who shall,]1 in exercise of his functions, [act in
accordance with such advice.]1
[Provided that the President may require the Council of Ministers to reconsider
such advice, either generally or otherwise, and the President shall act in
accordance with advice tendered after such reconsideration.]2
(2) The question whether any, and if so what, advice was tendered by Ministers
to the President shall not be inquired into in any court.

Note 1 – These phrases of Article 74(1) enacted by The Constitution (42nd)

Amendment Act, 1976, by the Indira Gandhi Government.

NOTE 2 – Although, The Constitution (44th Amendment) Act, 1978 was enacted
by the Janata Party Government headed by Morarji Desai such Act added the
“Proviso” to Article 74.
In other words, the President may return a matter to his Ministers once to
reconsider, but the reconsidered advice shall be binding.
 Instance 1:
In October 1997, the Cabinet recommended President K.R. Narayanan to
impose President’s Rule in Uttar Pradesh as per Article 356.
The President returned the matter for reconsideration of the Cabinet.
The Cabinet then decided not to move ahead in the matter.
Hence the BJP-led government under Kalyan Singh was saved.

Instance 2:
In September 1998, the Cabinet recommended President K.R. Narayanan to
impose President’s Rule in Bihar under Article 356.
The President returned the matter for reconsideration of the Cabinet.
The Cabinet again reiterated the same advice.
Hence President’s rule was imposed in Bihar in February 1999.

➢ The Council of Ministers shall be collectively responsible to the House of the

People. [Article 75(3)].

SITUATIONAL DISCRETIONARY POWERS ENJOYED BY THE PRESIDENT:

(1) Appointment of Prime Minister
a. when no party has a clear majority in the Lok Sabha or
b. when the Prime Minister in office dies suddenly and there is no obvious
successor
(2) Dismissal of the Council of Ministers when it cannot prove the confidence of
the Lok Sabha
(3) Dissolution of the Lok Sabha if Council of Ministers have lost its majority.
 3. Powers/Functions of the President
1) Executive Powers in Articles 77 and 78.
PART V – The Union
Chapter I. – The Executive
Conduct of Government Business (Sub-Chapter – 4)
Article 77 – Conduct of business of Government of India
Article 78 – Duties of Prime Minister as respects the furnishing of information
to the President, etc.

Article 77 – Conduct of business of Government of India

(1) All executive action of Government of India shall be expressed to be taken in
the name of the President.
(2) Orders and other instruments made and executed in the name of the
President shall be authenticated in such manner as may be specified in the
rules1 to be made by the President, and the validity of an order or instrument
which is so authenticated shall not be called in question on the ground that it is
not an order or instrument made or executed by the President.
1. Notification No. S.O. 2297, dated the 3rd November, 1958, Gazette of India,
Extraordinary, as amended time to time.

(3) The President shall make rules for the more convenient transaction of the
business of the Government of India, and for the allocation among Ministers of
the said business.

Article 78 – Duties of Prime Minister as respects the

furnishing of information to the President, etc.
It shall be the duty of the Prime Minister –
 (a) to communicate to the President all decisions of the Council of the
Ministers relating to the administration of the affairs of the Union and
proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of
the Union and proposals for legislation as the President may call for; and
(c) if the President so requires, to submit for the 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.

2) Executive Powers (relating to making appointments):

(1) The President appoints following ‘during the pleasure of the President’:
a. the Prime Minister [Article 75(1)]
b. the other Council Ministers [Article 75(1)]
c. Attorney General of India [Article 76] and determines his remuneration
d. Governor of a State [Article 155 and 156]
e. Delhi Chief Minister and Council Minsters thereon [Article 239AA]
(2) Other appointments by the President:
a. Comptroller and Auditor-General of India [Article 148]
b. Chairman and other members of UPSC [Article 316]
c. Chief Election Commissioner and other Election Commissioners [Article
324]
d. Chairman, his deputy and other members of National Commission for
• Scheduled Castes [Article 338],
• Scheduled Tribes [Article 338A] and
• Backward Class [Article 338B]
e. Special Officer for linguistic minorities [Article 350B]
f. Can appoint inter-state council to promote center-state and inter-state
relations [Article 263]
3) Executive Powers (relating to administration of Scheduled
and Tribal Areas)
Article 244 – Administration of Scheduled and Tribal Areas
244(1) – The provision of the Fifth Schedule shall apply to the administration
and control of the Scheduled Areas and Scheduled Tribes in any State other than
the States of Assam, Meghalaya, Tripura and Mizoram.
Fifth Schedule – The President can declare any area as scheduled area and has
powers with respect to the administration of Scheduled Areas and Tribal Areas.

4) Military Powers
Article 53 – Executive powers of the President
(1) The executive power of the Union shall be vested in the President and shall
be exercised by him either directly or through officers subordinate to him in
accordance with this Constitution.

(2) Without prejudice to the generality of the forgoing provision, the supreme
command of the Defence Forces of the Union shall be vested in the President
and the exercise thereof shall be regulated by law.
Military Powers – In that capacity the President can:
• appoint the Chiefs of the Army, the Navy and the Air Force.
• the President can declare war or conclude peace, subject to the approval
3of Parliament.
(3) Nothing in this article shall –
(a) be deemed to transfer to the President any functions conferred by any
existing law on the Government of any State or other authority; or
(b) prevent Parliament from conferring any law functions on authorities other
than the President.
5) Legislative Powers in Article 111 and Article 200 (related to
Veto Power)
PRESIDENTIAL VETO POWER OVER UNION LEGISLATION
PART V – The Union
Chapter II – Parliament
Legislative Procedure (Sub-Chapter – 6; Article 107 to 111)
Article 111 – Assent to Bills

Article 111 – Assent to the Bills. –

When a Bill has been passed by the Houses of Parliament, it shall be presented
to the President, and the President shall declare either that he assents to the
Bill, or that he withholds assent therefrom:
Provided that the President may, as soon as possible after the presentation to
him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with
a message requesting that they will reconsider the Bill or any specified provision
thereof and, in particular, will consider the desirability of introducing the any
such amendments as he may recommend in his message, and when a Bill so
returned, the Houses shall consider the Bill accordingly, and if the Bill is passed
again by the Houses with or without amendment and presented to the
President for assent, the President shall not withhold assent therefrom.

Therefore, the President has three alternatives w.r.t a Bill:

(1) to give assent to the Bill, or
(2) to withhold his assent to the Bill, or
(3) to return the Bill to Parliament (as per and subject to the 1st Proviso)

Thus, the President can exercise Veto power over a Bill passed by the
Parliament by withholding it.
The President has no Veto power in respect of a Constitutional Amendment
Bill. The Constitution (24th Amendment) Act, 1971 made obligatory to the
President to give consent to a Constitutional Bill.
The object of conferring this power to the President can be:
(1) to prevent a hasty and ill-considered legislation by the Parliament.
(2) To prevent a legislation which may be unconstitutional.

The Veto power enjoyed by the executive in modern states can be classified
into the following four types:
Absolute Veto Qualified Veto Suspensive Veto Pocket Veto
Withholding the Which can be Which can be Taking no action
assent to the Bill overridden by the overridden by the on the bill passed
passed by the Legislature with Legislature with by the Legislature.
Legislature. higher majority. ordinary majority.

(1) Absolute Veto

It refers to the power of the President to withhold his assent to a Bill passed
by Parliament. The Bill then ends and does not become a law.
Usually Absolute veto is exercised in the following two cases:
(a) With respect to a Private member Bill (i.e. a Bill introduced by a MP who
is not a Minister); and
(b) With respect to the Government Bills when the Cabinet resigns after the
passage of the Bill but before the assent by the President and the New
Cabinet advices the President to not to give assent to such Bills.

Examples:
In 1954, President Dr. Rajendra Prasad withheld his assent to the PEPSU
Appropriation Bill. The bill was passed by the Parliament when the
President’s rule was in operation in the PEPSU State. But, when the bill was
presented to the President for his assent, the President’s rule was revoked.
In 1991, President r Venkataraman withheld his assent to the Salary,
Allowances and Pension of Member of Parliament (Amendment) Bill. The Bill
was passed by the Parliament on the last day before dissolution of Lok Sabha
without obtaining previous recommendation of the President.
(2) Qualified Veto
A Veto which can be overridden by the Legislature with higher majority.
In USA a higher majority is required in the Legislature to enact a Bill over
which the President has exercised Qualified Veto.
(3) Suspensive Veto
Which can be overridden by the Legislature with an ordinary majority.
[For Details Refer 1st Proviso of Article 111.]
Money Bill is an exception to such a Veto power as mentioned in 1st proviso
of Article 111, although such situation arises very marginally as prior
recommendation of the President is needed to introduce a Money bill.

(4) Pocket Veto

In this case, the President neither ratifies nor rejects nor returns the Bill, but
simply keep the Bill pending for an indefinite period.
This power of President taking no action (either positive or negative) on the
Bill passed by the Parliament is known as Pocket Veto.
As the Constitution does not prescribe any time-limit within which the
President shall take decision w.r.t a Bill presented to him for his assent.
Example:
In 1986, President Gyani Zail Singh exercised the pocket veto w.r.t the Indian
Post Office (Amendment) Bill. The said Bill, passed by the Rajiv Gandhi
Government, imposed restrictions on the freedom of the press and hence,
was widely criticized. After three years, in 1989, the next President R
Venkataraman sent back the Bill for reconsideration but the new National
Front Government dropped the Bill.

PRESIDENTIAL VETO POWER OVER STATE LEGISLATION

PART VI – The States
Chapter III – The State Legislature
Legislative Procedure (Sub-Chapter – 5; Articles 196 – 201)
Article 200 – Assent of Bills
Article 201 – Bills reserved for Consideration
As per Article 200, A Bill passed by the House or Houses of the Legislature of a
State shall be presented to the Governor and the Governor shall declare either
(1) that he assents the Bill, or
(2) that he withholds assent therefrom, or
(3) that he reserves the Bill for the consideration of the President, or
(in accordance with and subject to 2nd Proviso)
(4) that he returns the Bill to State Legislature for reconsideration.
(in accordance with and subject to 1st Proviso)

Article 201 – Bills reserved for consideration. –

When a Bill is reserved by a Governor for the consideration of the President,
the President shall declare either that he assents to the Bill or that he withholds
assent therefrom:
Provided that, where the Bill is not a Money Bill, the President may direct the
Governor to return the Bill to the House or, as the case may be, the Houses of
the Legislature of the State together with such a message as it mentioned in the
first proviso to article 200 and, when a Bill is so returned, the House or Houses
shall consider it accordingly within a period of six months from the date of
receipt of such message and, if it is again passed by the House or houses with
or without amendment, it shall be presented again to the President for his
consideration.
Thus, it means that reconsideration and again passage of the same Bill from
State Legislature shall not make obligatory to the President to give his assent
and the President can also exercise Pocket Veto as time-limit is not prescribed.

Overview of Presidential veto Power

Type of Bill Central Legislation State Legislation
Ordinary Bills Can be ratified, rejected or returned
Money Bills Can be ratified or rejected (but cannot be returned)
Constitutional Can only be ratified (i.e. N.A.
Amendment Bills cannot be returned or
rejected)
6) Legislative Powers in Article 123 (related to promulgation of
Ordinances)
PART V – The Union
Chapter III – Legislative Powers of the President (Contains Only Article 123)
Article 123 – Power of President to promulgate Ordinances during the recess
of Parliament

Article 123 – Power of President to promulgate Ordinances

during the recess of Parliament
(1) 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 may appear to him to require.

(2) 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 the Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation. – 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.

Therefore, the Ordinance making power of President can be summarized with

following explanations (first four being limitations):
(1) “except when both Houses of Parliament are in session” [Article 123(1)]
 Explanations:
➢ An Ordinance issued when both the Houses are in session is void.
➢ The President can promulgate Ordinance even when either of the two
Houses are not in session.

(2) “President is satisfied that circumstances exist which render it necessary

for him to take immediate action” [Article 123(1)]
In R.C. Cooper v. Union of India, 1970, the Supreme Court held that the
President’s assent can be questioned in a court on the ground of mala fide.
Therefore, the President’s assent can be questioned on the ground that
the President has prorogued either or both Houses of Parliament with a
view to promulgate an Ordinance on a controversial subject, thereby
circumventing the authority of Parliament.

The Constitution (38th Amendment) Act, 1975 made the President’s

satisfaction final and beyond judicial review.
The Constitution (44th Amendment) Act, 1978 deleted such provisions.
Thus, President’s assent is justiciable on mala fide grounds.

(3) “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 the Houses, upon the passing of the second of those resolutions;”
[Article 123(2)(a)]
If the Ordinance is approved by both the Houses it becomes an Act.
If the Parliament takes no action it shall cease to operate as per this article.
If both Houses are summoned to reassemble on different dates, the period
of six weeks is calculated from the later of those dates. [Explanation to
Article 123(2)]
This means that maximum life of an Ordinance can be 6 Months + 6 Weeks.
(6 Months being the maximum time b/w two sessions of Parliament as per
Article 85)
 If an Ordinance is allowed to lapse without being placed before the
Parliament, then the acts done and completed under it, before it ceases to
operate, remain fully valid and effective.

According to the rules of Lok Sabha, whenever a Bill seeking to replace an

ordinance is introduced in the House, a statement explaining the
circumstances that had necessitated immediate legislation by Ordinance
should also be placed before the House.

The Supreme Court in Dr. D.C. Wadhwa v. State of Bihar, 1986 pointed
out that b/w 1967-1981 the Governor of Bihar promulgated 256
Ordinances and were kept in force by promulgation from time to time for
period ranging from 1-14 years.
The Court ruled that successive re-promulgation of Ordinances with the
same context without an attempt to get Bills passed from the Legislative
Body is unconstitutional and hence is these types of re-promulgation are
liable to be struck down. The Supreme Court held that the exceptional
power of law-making through ordinances cannot be used as a substitute
for the legislation power of the Legislature.

(4) Subject to the provisions of Article 123(3) and Article 13.

Ordinance can be used only on those subjects on which the Parliament can
make laws. [Article 123(3)]
An ordinance cannot abridge or take away any of the Fundamental Rights
as Article 13 expressly mentions ‘Ordinance’ [Article 13].

(5) “he may promulgate such Ordinances” [Article 123(1)] and “may be
withdrawn at any time by the President” [Article 123(2)(b)]
However, these powers of Ordinance making and withdrawing are not
discretionary powers, as the President acts only on the advice of Council of
Ministers headed by the Prime Minister.
 (6) “shall have the same force and effect as an Act of Parliament” [Article
123(2)]
Thus, an Ordinance can be retrospective, can modify or repeal any act of
Parliament or another Ordinance, can alter and amend taxation laws etc.
But cannot be promulgated in order to amend the Constitution.

(7) The promulgation of an Ordinance does not relate to the provisions of

Article 352 i.e. Proclamation of Emergency. In other words, the President
can issue an Ordinance even when there is no war or external aggression
or armed rebellion.

NOTE –Ordinance making power of the President of India is rather unusual. And
is not so found in most of the Democratic Constitutions of the world including
USA and UK.
In Justification to this, Dr. B.R. Ambedkar said in the Constituent Assembly that
the mechanism of issuing an Ordinance have been devised in order to enable
the executive to deal with a situation that may suddenly and immediately arise
when the Parliament is not in session.

7) Other Legislative Powers

(1) Article 85 – Sessions of Parliament, prorogation and dissolution. –
(1) The President shall from time to time summon each House of
Parliament to meet at such time and place as he thinks fit, but six months
shall not intervene between its last sitting in one session and the date
appointed for its first sitting in the next session.
(2) The President may from time to time –
(a) prorogue the Houses or either House;
(b) dissolve the House of the People.
(2) Article 86 – Right of President to address and send messages to the Houses
(1) The President may address either House of Parliament or both Houses
assembled together, and for that purpose require the attendance of
members.
(2) The President may send messages to either House of Parliament,
whether with respect to a Bill then pending in Parliament or otherwise, and
a House to which any message is so sent shall with all convenient despatch
consider any matter required by the message to be taken into
consideration.

(3) Article 87 – Special address by the President. –

(1) At the commencement of the first session after each general election to
the House of the People and at the commencement of the first session of
each year the President shall address both Houses of Parliament
assembled together and inform Parliament of the causes of its summons.
(2) Provisions shall be made by the rules regulating the procedure of either
House for the allotment of time for discussion of the matters referred to in
such address.

(4) The Council of States shall consist of 12 members to be nominated by the

President in accordance with the provisions of article 80 (3). [Article 80(1)]
The members to be nominated shall have special knowledge or practical
experience in Literature, Science, Art or Social Service. [Article 80 (3)]

(5) The President appoints any member of Rajya Sabha to preside over its
proceedings when the offices of both the Chairman and Deputy Chairman
falls vacant. [Article 91(1)]
The President appoints any member of Lok Sabha to preside over its
proceedings when the offices of both the Speaker and the Deputy Speaker
falls vacant. [Article 95(1)]

(6) Article 103 – Decision on questions as to disqualifications of members. –

 (1) If any question arises as to whether a member of either House of
Parliament has become subject to any of the disqualifications mentioned in
clause (1) of article 102, the question shall be referred for the decision of
the President and his decision shall be final.
(2) Before giving any decision on such question, the President shall obtain
the opinion of the Election Commission and shall act according to such
opinion.
(7) The President can summon a joint sitting of both the Houses of Parliament
[Article 108], a joint sitting is presided by the Speaker of Lok Sabha.

(8) A Bill passed by the House or Houses of the Legislature of a State can be
reserved for the consideration of the President by the Governor of the
State as per Article 200.
Article 201 – Bills reserved for consideration. –
When a Bill is reserved by a Governor for the consideration of the
President, the President shall declare either that he assents to the Bill or
that he withholds assent therefrom:
Provided that, where the Bill is not a Money Bill, the President may direct
the Governor to return the Bill to the House or, as the case may be, the
Houses of the Legislature of the State together with such a message as it
mentioned in the first proviso to article 200 and, when a Bill is so returned,
the House or Houses shall consider it accordingly within a period of six
months from the date of receipt of such message and, if it is again passed
by the House or houses with or without amendment, it shall be presented
again to the President for his consideration.

(9) The President lays report of the following before the Parliament:
• Comptroller and Auditor-General of India [Article 151]
• Union Public service Commission [Article 323] etc.

(10) The President may make regulations for the peace, progress and good
government of the Union Territory of [Article 240]–
 1. the Andaman and Nicobar Islands;
2. Lakshadweep;
3. Dadar and Nagar Haveli;
4. Daman and Diu;
5. Ladakh
In case of Puducherry the President can legislate by making regulations but
only when the Legislative Assembly is suspended or dissolved. [1st and 2nd
Proviso of Article 240]

8) Financial Powers
(1) A Bill or amendment making provision for any of the matters specified in
sub-clauses (a) to (f) of clause (1) of article 110 shall not be introduced or
moved except on the recommendation of the President and a Bill making
such provision shall not be introduced in the Council of States:
Provided that no recommendation shall be required under this clause for
the moving of an amendment making provision for the reduction or
abolition of any tax. [Article 117(1)]
Article 110(1)(a) – 110(a)(f) clarifies types of Money Bills.

(2) The President shall in respect of every financial year cause to be laid before
the Parliament the annual financial statement i.e., the Union Budget.
[Article 112(1)]

(3) No demand for a grant shall be made except on the recommendation of

the President. [Article 113(3)]

(4) The President can make advances out of the contingency fund of India to
meet any unforeseen expenditure. [Article 267(1)]

(5) The President shall, within two years from the commencement of this
Constitution and thereafter at the expiration of every fifth year or at such
earlier time as the President considers necessary, by order constitute a
 Finance Commission which shall consist of a Chairman and four other
members to be appointed by the President. [Article 280(1)]

9) Judicial Powers
(1) The President appoints
a. Every Judge of the Supreme Court. [Article 124]
b. Every Judge of a High Court [Article 217]

(2) Article 143 – Power of President to consult Supreme Court

(1) If at any time it appears to the President that a question of law or fact
has arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme Court
upon it, he may refer the question to that Court for consideration and the
Court may, after such hearing as it thinks fit, report to the President its
opinion thereon.
(2) The President may notwithstanding anything in the proviso to article
131, refer a dispute of the kind mentioned in the said proviso to the
Supreme Court for opinion and the Supreme Court shall, after such hearing
as it thinks fit, report to the President its opinion thereon.

10) Executive Power in Article 72 (related to grant of pardons

etc. and thereby connected to Judiciary)
Article 72 – Power of President to grant pardons, etc., and
to suspend, remit or commute `sentences in certain cases. –
(1) The President shall have the power to grant pardons, reprieves, respites
or remission of punishment or to suspend, remit or commute the sentence of
any person convicted of any offence –
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against
any law relating to a matter to which the executive power of the Union
extends;
 (c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by
law on any officer of the Armed Forces of the Union to suspend, remit or
commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend,
remit or commute a sentence of death exercisable by the Governor of a State
under any law for the time being in force.

The pardoning power of the President is independent if the Judiciary; it is an

executive power.
The President while exercising this power, does not sit as a Court of appeal.
The object of conferring this power for the President are:
➢ to keep the door open for correcting any Judicial errors.
➢ to afford relief from a sentence, which the President regards as unduly
harsh.

The Supreme Court examined the pardoning power of the President under
different cases and laid down the following principles:
(1) The petitioner for mercy petition has no right to an oral hearing by the
President.
(2) The President can take a different view taken by the Court while
examining the evidence afresh.
(3) Such power is exercised by the President on advice of the Union Cabinet.
(4) The President is not bound to give reasons for his order.
(5) The President can grant relief from unduly harsh sentence or evident
mistake.
(6) Such exercise of power of the President is subject to the Judicial review
only on the grounds of being arbitrary, irrational, mala fide or
discriminatory.
(7) Where the earlier mercy petition has been rejected by the President, stay
cannot be obtained by filing another petition.
(8) There is no need for the Supreme Court to lay down specific guidelines for
the exercise of such power by the President.

The pardoning power of the President includes the following:

(1) Pardon
It completely absolves the convict from all sentences, punishments, and
disqualifications i.e. removes both the sentence and the conviction.

(2) 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.

(3) Respite
It denotes awarding a lesser sentence in place of one originally awarded
due to some special fact like physical disability, pregnancy of the convict.

(4) Remission
It implies reducing the period of sentence without altering its character.
For Instance – a sentence of rigorous imprisonment of two years may be
remitted to rigorous imprisonment of one year.

(5) Commutation
It denotes the substitution of one form of punishment for a lighter one.
For Instance – Commuting a death sentence to rigorous imprisonment or
a rigorous imprisonment to a simple imprisonment.

Governor of a State is also entitled of pardoning power as per Article 161

subject to any conviction/sentence against a State law.
 Difference b/w the pardoning power of the President (Article 72) and that of
the Governor (Article 161):
(1) The President can pardon sentences inflicted by Court Martial (military
courts) while the Governor cannot.
(2) The President can pardon death sentences while the Governor cannot.
Even if a State law prescribes death sentence.
However, the Governor can suspend, remit or commute death sentence.
In other words, both the President and a Governor have concurrent
power in respect of suspension, remission and commutation (and not
pardon) of death sentence.

11) 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.
The President approves the appointments of Ambassadors/High
Commissioners based on the recommendations of the Prime Minister and the
External Affairs Minister also the appointment is subject to the approval of the
host state.

12) Emergency Powers

The President, subject to the provisions of respective articles, can proclaim:
(1) National Emergency (Article 352)
(2) President’s Rule (Article 356 & 365)
(3) Financial Emergency (Article 360)
 4. Election of the President
1)Article 54 – Election of the President
The President shall be elected by the members of an electoral college consisting
of –
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.

[Explanation. – In this article and in article 55, “State” includes the National
Capital Territory of Delhi and Union territory of Pondicherry.]

Defining key words

• Elected Members & Legislative Assemblies
o Only elected members of both houses of the Parliament i.e. no
nominated member is part of electoral college.
o Only elected members of a State Legislative Assemblies (including NCT
of Delhi and Pondicherry) i.e. no nominated members of a State
Legislative Assembly as well as no Legislative Council of a State forms
part electoral college.

Elected Members of Parliament:

Parliament
Lok Sabha Rajya Sabha
550 Sanctioned Seats 250 Sanctioned Seats

Elected Elected Nominated

550 Sanctioned Seats 238 Sanctioned Seats 12 Sanctioned Seats

STATES UT Alloted
530 Sanctioned Seats 20 Sanctioned Seats 233 Seats

ALL 530 Seats Alloted 13 Seats Alloted

2)Article 55 – Manner of Election of President
(1) As far as practicable, there shall be uniformity in the scale of representation
of the different States at the election of the President.

(2) For the purpose of securing such uniformity among the States inter se as
well as parity between the States as a whole and the Union, the number of
votes which each elected member of Parliament and of the Legislative
Assembly of each State is entitled to cast at such election shall be determined
in the following manner:—
(a) 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;
(b) if, after taking the said multiples of one thousand, the remainder is not less
than five hundred, then the vote of each member referred to in sub-clause
(a) shall be further increased by one;

Therefore, each elected MLA’s vote =

State′ s Population (as per1971 census) 1
∗
Number of Elected Members of State Legislative Assembly 1000

If the remainder is more than 500 then 1 vote is to be increased.

(c) each 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 the members of the Legislative Assemblies of the States under
sub-clauses (a) and (b) by the total number of the elected members of both
Houses of Parliament, fractions exceeding one-half being counted as one
and other fractions being disregarded.

Therefore, each elected MPs vote =

Total no. of votes assigned for MLAs of State Assemblies
Total no. of elected members of both Houses of Parliament.
 If the remainder is more than half then 1 vote is to be increased.

(3) The election of the President shall be held in accordance with the system of
proportional representation by means of the single transferable vote and the
voting at such election shall be by secret ballot.

[Explanation—In this article, the expression “population” means the

population as ascertained at the last preceding census of which the relevant
figures have been published:
Provided that the reference in this Explanation to the last preceding census of
which the relevant figures have been published shall, until the relevant figures
for the first census taken after the year [2026 have been published, be
construed as a reference to the 1971 census.]

Some members of the Constituent Assembly preferred direct election for the
President but was not undertaken because:
1. Under Parliamentary System, the President is only a nominal executive
and the real powers vest in the council of ministers headed by the P.M. It
would have been anomalous to have the President elected directly and
not give him the real powers.

3)Single Transferrable Vote System

Method of Single Transferrable Vote (explanation with key terms):
1. Preferential Voting - Voter has to choose preferences rather than
only one candidate.
For Instances:
If there are 4 candidates A, B, C and D.
Candidate Preferences
A 3
B 1
C 4
D 2
2. Quota - Quota is the Minimum votes to win

𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝑇𝑜𝑡𝑎𝑙 𝑉𝑎𝑙𝑖𝑑 𝑉𝑜𝑡𝑒𝑠

Minimum votes to win = ( )+1
𝑁𝑜. 𝑜𝑓 𝑣𝑎𝑐𝑎𝑛𝑐𝑖𝑒𝑠 + 1

For Instance: If total value of votes = 1000

And there is one President to be elected.
1000
Then, Quota = ( 1+1 ) + 1 = 501
Therefore, to win a candidate needs 501 votes.

3. Counting -
Round 1 Counting
Candidate Total votes after 1st
Round
A 200
B 300
C 400
D 100

Since Quota value of 501 is not achieved by any candidate.

Round 2 counting will be done.

Round 2 Counting
The candidate receiving least votes will be out. Therefore, D is out.

The votes of outgoing candidate (D) will be distributed among other

members w.r.t 2nd preference in those votes (votes of D).

The outgoing candidates (D) votes will be distributed among rest of the
candidates as per 2nd Preference.
Candidate Results of 2nd Preference of Votes of D
(100 Votes)
A 20
 B 70
C 10

Total Votes after 2nd Round

Candidate Total votes Addition Total Votes
after 1st Round in 2nd after 2nd Round
Round
A 200 20 220
B 300 70 370
C 400 10 410
D 100 -100 -

In this round also none of the candidates secured the quota i.e. 501.

Round 3 Counting
Again, the candidate receiving least votes will be out. Therefore, A is out

Now, since another candidate (A) is eliminated. All the votes carried by this
candidate (A) will be distributed among others.
All the votes carried by outgoing candidate (A) =
Votes gained as 1st preference + Votes gained as 2nd preference
(Votes having earlier candidate (D) as 1st
preference).

Candidate Results of 2nd Results of 3rd Preference

Preference of Votes of Votes of D with 2nd
of A Preference of A
(200 Votes) (20 Votes)
A - -
B 110 8
C 90 12
Total votes after 3rd Round
Candidate Total votes Addition in 3rd Total Votes
after 2nd Round Round after 3rd Round
 B 370 118 488
C 410 102 512

4. Results
As a candidate (C) have achieved the desired quota of 501. He wins.
512
And the percentage of wining would be 51.2% ( 100 ∗ 100 ).

4)Article 71 – Matters relating to or connected with, the

election of a President or Vice-President. –
(1) All doubts arising out of or in connection with the election of a President or
Vice-President shall be inquired into and decided by the Supreme Court whose
decision shall be final.
(2) If the election of a person as President or Vice-President in declared void by
the Supreme Court, acts done by him in the exercise and performance of the
powers and duties of the office of President or Vice-President, as the case may
be, on or before the date of the decision of the Supreme Court shall not be
invalidated by reason of that declaration.
(3) Subject to the provisions of this Constitution, Parliament may by law
regulate any matter relating to or connected with the election of a President or
Vice-President.
(4) The election of a person as President or Vice-President shall not be called in
question on the ground of the existence of any vacancy for whatever reason
among the members of the electoral college electing him.

This Article have been amended twice by The Constitution (39 th Amendment)
Act, 1975 and The Constitution (44th Amendment) Act,1978.
 5. President in Office
1)Article 56 – Term of office of President
(1) The President shall hold office for a term of five years from the date on
which he enters upon his office:
Provided that –
(a) the President may, by writing under his hand addressed to the Vice-
President, resign his office;
(b) the President may, for violation of the Constitution, be removed from
office by impeachment in the manner provided in article 61;
(c) the President, shall notwithstanding the expiration of his term, continue
to hold office until his successor enters upon his office.

(2) Any resignation addressed to the Vice-President under clause (a) of the
proviso of clause (1) shall forthwith be communicated by him to the Speaker
of the House of People.

2)Article 57 – Eligibility of re-election

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.

Therefore, a person can be get elected as President of India for any number of
times. Although USA has limited a person to hold the office of President of
USA by 2 terms (8 years) through amending its Constitution by 22nd
Amendment, 1951.

3)Article 58 – Qualification for election as President

(1) No person shall be eligible for election as President unless he -
(a) is a citizen of India,
(b) has completed the age of thirty-five years, and
(c) is qualified for election as a member of the House of People.
 (2) 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.
Explanation. – For the purpose of this article, a person shall not be deemed to
hold office of profit by reason only that he is the President or Vice-President of
the Union or the Governor of any State or is a Minister either for the Union or
for any State.

Therefore, a sitting President or Vice-President of the Union or the Governor

of any of the State or Minister of Union or any State are eligible to contest
Presidential Elections.

Further, 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.
Every candidate has to make a security deposit of ₹15000 with RBI. The
security deposit is liable to be forfeited if the candidate fails to secure 1/6 th of
the votes polled.
The number of proposers and seconders were revised from 10 each as well as
deposit money was also revised from ₹2500 by amendment of The
Presidential and Vice-Presidential Elections Act, 1952 in 1997 to avoid non-
serious candidates.

4)Article 59 – Conditions of President’s Office

(1) The President shall not be a member of either House of Parliament or of a
House of the Legislatures of any State, and if a member of either House of
Parliament or of a House of the Legislatures of any State be elected President,
he shall be deemed to have vacated his seat in the House on the date on which
he enters upon his office as President.
(2) The President shall not hold any other office of profit.
 (3) 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 provisions
in that behalf is so made, such emoluments, allowances and privileges as are
specified in the Second Schedule.
(4) The emoluments and allowances of the President shall not be diminished
during his term of office.

The President is entitled to:

• personal immunity from legal liabilities for his official acts.
• Immunity from criminal proceedings during his term of office (even w.r.t
to personal activities)
• He cannot be arrested or imprisoned

The salary of the President was revised in 2018 making it ₹5 Lakh per month
and pension was revised in 2008 making it 50% of the per month salary. In
addition, the former Presidents are also entitled to furnished residence,
phone facilities, car, medical treatment, travel facility, secretarial staff and
office expenses up to ₹1,00,000 p.a.

5)Article 60 – Oath or affirmation by the President

Every President and every person acting as President or discharging the function
of the President shall, before entering upon his office, make and subscribe in
the presence of the Chief Justice of India or, in his absence, the senior-most
Judge of the Supreme Court available, an oath or affirmation in the following
form, that is to say –
“I, A.B., do (swear in the name of God)/(solemnly affirm) that I will faithfully
execute the office of President (or discharge the function of the President) of
India and will to the best of my ability preserve, protect and defend the
Constitution and the law and that I will devote myself to the service and well-
being of the people of India”.
 6. Impeachment and Vacancy
1)Article 61 – Procedure for impeachment of the President
(1) When a President is to be impeached for violation of the Constitution, the
charge shall be preferred by either House of Parliament.
The Constitution does not define the meaning of the phrase ‘violation of the
Constitution’.
(2) No such charge shall be preferred unless –
(a) the proposal to prefer such charge is contained in a resolution which has
been moved after at least fourteen days’ notice in writing signed by not less
than one-fourth of the total number of members of the House has been given
of their intention to move the resolution, and
(b) such resolution has been passed by a majority of not less than two-thirds
of the total membership of the House.

(3) When a charge has been preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and
the President shall have the right to appear and to be represented at such
investigation.

(4) If as a result of the investigation a resolution is passed by a majority not less

than two-thirds of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred
against the President has been sustained, such resolution shall have the effect
of removing the President from his office as from the date on which the
resolution is so passed.

An impeachment is a quasi-judicial procedure in the Parliament.

Important things to note:
Unlike the election procedure of the President, as per Article 55
(1) the nominated members can participate in the impeachment procedure.
 (2) the elected MLAs of a State Legislatures and the Union Territories of Delhi
and Puducherry cannot participate in the impeachment procedure.

2)Article 62 – Time of holding election to fill vacancy in the

office of President and the term of office of person elected to fill
the vacancy
(1) 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.

As per Article 56(1)(c) – the President shall, notwithstanding the expiration of

his term, continue to hold office until his successor enters upon his office.
This is provided in the Constitution to avoid an ‘interregnum’.
The Vice-President is not appointed as acting President in the above situation.

(2) 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.
The term ‘otherwise’ would mean when he becomes disqualified to hold office
or when his/her election is declared void.

In the above causes of vacancies, the following acts as President until a new
President enters the office:
• The Vice-President
• The Chief Justice of India [if the office of Vice-President is vacant]
• The Senior-Most Judge of the Supreme Court [if the office of CJI is vacant]
 Further, when the sitting President is unable to discharge his functions due to
absence, illness or any other cause, the Vice-President discharges the functions
until President resumes his office.

NOTE – When any person is acting as the President or discharging the functions
of the President, he/she enjoys all the powers and immunities of the President
and is entitled to such emoluments, allowances and privileges as are
determined by the Parliament.

NOTES BY – MOHIT KUMAR GUPTA