Power and position of President

Constitutional Law
Dr. Suresh Santani
By:
Neelam Lalwani
Roll No. 155
F.Y LLB Sem II
Div C
Introduction
The Constitution of India (Bhartiya Samvidhan)
The Constitution of India is the supreme law of India. The document lays down the framework
that demarcates fundamental political code, structure, procedures, powers, and duties of
government institutions and sets out fundamental rights, directive principles, and the duties of
citizens. It is the longest written constitution of any country with 448 articles, 25 parts, and 12
schedules. There are 104 amendments that have been made in the Indian constitution up to
January 25, 2020.
The Constitution of India imparts constitutional supremacy and not parliamentary supremacy,
since it was created by a constituent assembly rather than Parliament. It was adopted by its
people with a declaration in its preamble. Parliament cannot override the constitution.
In 1928, the All Parties Conference convened a committee in Lucknow to prepare the
Constitution of India, which was known as the Nehru Report. Most of the colonial India was
under British rule from 1857 to 1947. From 1947 to 1950, the same legislation continued to be
implemented as India was a dominion of Britain for these three years, as each princely state
was convinced by Sardar Patel and V.P.Menon to sign the articles of integration with India,
and the British government continued to be responsible for the external security of the country.
Thus, the constitution of India repealed the Indian Independence Act 1947 and Government of
India Act 1935 when it became effective on 26 January 1950. India ceased to be a dominion of
the British Crown and became a sovereign democratic republic with the constitution. Articles
5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393, and 394 of the constitution came
into force on 26 November 1949, and the remaining articles became effective on 26 January
1950.
The Preamble to the Constitution defines India as SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and it is adopted by the people of INDIA. As originally enacted
the preamble described the state as a "sovereign democratic republic", to which the terms
"Secular" and "Socialist" were later passed by a Captive Parliament during The Emergency in
the 42nd Amendment.

President of India
Indian President is the head of the state. He is the first citizen of India and is a symbol of
solidarity, unity and integrity of the nation. He is a part of Union Executive along with Vice-
President, Prime Minister, Council of Ministers and Attorney-General of India.
Once President is elected, he holds office for five years. He sits in the office even after the
completion of five years given no new election have taken place or no new President has been
elected till then. He can also be re-elected and there is no cap on his re-election.

Objective
The objective of this paper is to discuss on the power and position of the President in INDIA.
We will discuss on how the president is elected and what are the powers granted by the
Constitution of India to the head of the states.
Content
Article 52 - The President of India.—There shall be a President of India
This article is the base of the position of President in India. It prescribes that the India shall in
all time/s have the president as the head of the states.
Election of the President of India (Article 54)
There is no direct election for the Indian President. An electoral college elects him. The
Electoral College responsible for President’s elections comprises elected members of:
1. Lok Sabha and Rajya Sabha
2. Legislative Assemblies of the states (Legislative Councils have no role)
3. Legislative Assemblies of the Union Territories of Delhi and Puducherry
Qualifications of the President of India (Article 58)
President of India is a very honorary position. He is the head of the states. Hence it is necessary
to stipulate minimum to be elected as the president. Those qualifications are prescribed under
Article 58 of the Constitution of India as :
1. He should be an Indian Citizen
2. His age should be a minimum of 35 years
3. He should qualify the conditions to be elected as a member of the Lok Sabha
4. He should not hold any office of profit under the central government, state government,
or any public authority

Power and position of President of India

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 under Article 60 of Constitution of India. The President
is the common head of all independent constitutional entities. All his actions, recommendations
and supervisory powers 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.
In India the powers of the Union government are treated as the powers of the President because
these powers are used in his name in pursuance of the constitutional stipulation under Article
53 which reads: The executive powers of the Union shall be vested in the President and shall
be exercised by him either directly or through the officers’ subordinate to him in accordance
with this Constitution.
The powers of the President of India are prescribed / defined vide various Articles of the
Constitution of India. These can be majorly bifurcated as below:
1. Executive Powers of the President of India
2. Legislative Powers of the President of India
3. Financial Powers of the President of India
4. Diplomatic Powers of the President of India
5. Military Powers of the President of India
6. Ordinance Making Powers of the President of India
7. Emergency Powers of the President of India
8. Pardoning Power of the President of India
9. Veto Power of the President of India
Let discuss the details of the power of the President
Executive Powers
➢ The Union Legislature or Parliament consists of the President and two Houses of
Parliament. The President is, therefore, an integral part of Union Legislature. He shall
summon from time to time, either separately or jointly, the Houses of Parliament. The
President can prorogue the Houses or either House of Parliament and, if necessary, can
dissolve the lower Chamber of Parliament, the Lok Sabha. For example, the President
solved the twelfth Lok Sabha in early 1999 when the confidence motion in favour of the
Vajpayee government was lost in the Lok Sabha
➢ He may/may not make rules to simplify the transaction of business of the central
government
➢ He appoints the attorney general of India and determines his remuneration
➢ He appoints the following people:
- Comptroller and Auditor General of India (CAG)
- Chief Election Commissioner and other Election Commissioners
- Chairman and members of the Union Public Service Commission
- State Governors
- Finance Commission of India chairman and members
➢ He may seek administrative information from Union government
➢ He requires Prime Minister to submit, for consideration of the council of ministers, any
matter on which a decision has been taken by a minister but, which has not been
considered by the council
➢ He appoints National Commissions of:
- Scheduled Castes
- Scheduled Tribes
- Other Backward Classes
➢ He appoints inter-state council
➢ He appoints administrators of union territories
➢ He can declare any area as scheduled area and has powers with respect to the
administration of scheduled areas and tribal areas

Legislative Powers
➢ President has the power to summon, prorogue and address the Parliament. He also
dissolves the Lok Sabha. He can also summon a joint sitting of both Houses of Parliament
in case of a dead lock between them. Article 86 of the Constitution India grants this
power.
➢ He may send messages to either House of Parliament in regard to any Bill or to any other
matter.
➢ Laying Reports before the Parliament viz. Annual Financial Statement, Report of the
Comptroller and Auditor-General, Annual Report of the U.P.S.C., etc.
➢ There are certain Bills which cannot be introduced in the Parliament without the previous
sanction or recommendation of the President:
- creation or reorganization of States,
- Money Bill,
- A Bill involving expenditure from the Consolidated Fund of India,
- A Bill affecting taxation in which States are interested, and
- A Bill imposing restrictions on freedom of trade and commerce.
➢ No Bill can become an Act without the President's signature/assent. Except for Money
Bills, he can return the other Bills for reconsideration of the Parliament. If, however, the
two Houses pass the Bill again with or without amendments (suggested by the President)
and the Bill is presented to the President, he cannot withhold assent from the Bill.
➢ The President nominates 12 members to Rajya Sabha from persons having special
knowledge of arts, science, literature or social services. He also nominates 2 Anglo Indian
members to the Lok Sabha, if, in his opinion, that community is not adequately
represented.
➢ A bill passed by a State Legislature may also be reserved for the consideration of the
President by the Governor of that State. The President enjoys this right in relation to a
bill passed by a State Legislature only in such cases where those are referred to him by
the Government of a State under Article 200.

Financial Powers
➢ To introduce the money bill, his prior recommendation is a must
➢ He causes Union Budget to be laid before the Parliament
➢ To make a demand for grants, his recommendation is a pre-requisite
➢ Contingency Fund of India is under his control
➢ He constitutes the Finance Commission every five year

Diplomatic Powers
➢ International Treaties and agreements that are approved by the Parliament are negotiated
and concluded in his name. However, in practice, such negotiations are usually carried
out by the Prime Minister along with his Cabinet (especially the Foreign). Also, such
treaties are subject to the approval of the Parliament.
➢ The President represents India in international forums and affairs where such a function
is chiefly ceremonial. The President may also send and receive diplomats, i.e., the
officers from the Indian Foreign Service. The President is the first citizen of the country.
Military Powers
He is the commander of defence forces of India. He appoints:
➢ Chief of the Army
➢ Chief of the Navy, and
➢ Chief of the Air Force

Ordinance Making Power

Except when both Houses of Parliament are in session, the President may promulgate such
Ordinances as the circumstances appear to him to require (Article 123). Such an ordinance can
have the same force and effect of an Act of Parliament. Such an ordinance shall cease to operate
unless passed by both Houses of Parliament within the stipulated period. A.K. Roy vs. Union of
India (1982) illustrates the proposition that the satisfaction of the President must be as to the
existence of a situation which makes it necessary for the President to promulgate such on
Ordinance.
The more controversial and debatable legislative power of the President has always been the
Ordinance Making Power. Usually, the power to make the laws rests with the Parliament.
However, special power on the President empowering him to promulgate ordinances when the
Parliament is not in session and the circumstances are such which require immediate action.
An ordinance cannot be promulgated when both the houses of parliament are in session
However it may be passed when only one house is in session the reason being that a law cannot
be passed by only one house and thus it cannot meet a situation calling for immediate
legislation. This power granted to the President in the Indian Constitution is unique and no such
power has been conferred upon the executive in Britain or the USA.
In justification of the inception of the Ordinance Making power in the Constitution Dr
Ambedkar said that there might be a situation of emergency when the Houses of the parliament
are not in session. It is important that this situation should be dealt with and it seems to me
that the only solution is to confer upon the President. The power to promulgate the law which
will enable the executive to deal with that particular situation because it cannot resort to the
ordinary process of law because the legislature is not in session.

Emergency Power
The President deals with three types of emergencies given in the Indian Constitution:
➢ National Emergency (Article 352) - The President of India may issue a Proclamation of
National Emergency when the security of India or any part thereof is threatened by war,
armed rebellion or external aggression. Such a Proclamation of Emergency may remain
in force for an indefinite period. During a Proclamation of National Emergency, the
executive power of the States is to be exercised in accordance with the directions given
by the Central Government. Parliament has the power to make laws on the subjects
enumerated in the State List. The right to freedom of speech and expression, freedom to
form association, freedom to practice and profession, etc., embodied in Article 19 shall
remain suspended during such period.

➢ President’s Rule (Article 356 & 365) - In Case of failure of Constitutional machinery in
a State, the President of India is authorized to make a Proclamation to that effect. The
maximum duration of this type of emergency is three years. During such an emergency,
the President may assume to himself the executive powers of the State. The powers of
the legislatures of the State are to be exercised by the Union Parliament.
➢ Financial Emergency (Article 360) - The President may also issue a Proclamation of
Financial Emergency if he is satisfied that the financial stability of India is threatened.
This type of emergency may continue to remain in force for an indefinite period. The
Central Government may give directions to the States for canons of financial propriety.
All money-bills passed by the State Legislatures are to be reserved for the consideration
of the President.
He may also suspend the right to move to the courts for the enforcement of fundamental rights
except for Article 20 and Article 21 during the emergency. All the proceedings pending in any
court for the enforcement of such rights also remain suspended during the emergency period.

Pardoning Power
The President of India grants, pardons, reprieves or remissions of punishment to any person
who has been convicted by a Court of Law. As mentioned in Article 72 of the Indian
Constitution, the President is empowered with the powers to grant pardons in the following
situations:
➢ in all cases where the punishment or sentence is by a Court Martial
➢ 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
➢ in all cases where the sentence is a sentence of death
The decisions involving pardoning and other rights by the President are independent of the
opinion of the Prime Minister or the Lok Sabha majority. In most cases, however, the President
exercises his executive powers on the advice of the Prime Minister and the cabinet.

Veto Power
Article 111 of the Constitution of India deals with the veto power of the President. A bill is
introduced in the Parliament after it is presented to the Indian President for its approval. The
President is free to either reject the bill, return the bill or withhold his assent to the bill. The
President’s choice over the bill is called his Veto Power.

Now the question arise whether the President is a Titular head?

From the various positions and powers discussed above, it can be seen that the President has
been vested with many powers under the Constitution of India and all the decisions and actions
of the Government are taken in his name. But while there are many powers which are enjoyed
by the president, many of them are in actual practice, residing with the Council of Ministers
which is headed by the Prime Minister.
This position of the President is the same as the King of England and thus the it can be said
that the President is the Nominal or Titular Head of the State is true and the Prime Minister is
the actual head.
Conclusion
In India, the President is called the Executive head but he is only a titular head. Even though
the President is given many powers, many of them are not very effective for e.g., even if the
president sends a bill back to the Houses of Parliament for some modifications, the Parliament
can resend it without any modifications and the President is bound to give his assent.
Also, the President does not play an active role in the affairs of the State and the real Executive
power is vested in the Council of Ministers headed by the Prime Minister. So, the Prime
Minister is the real head of the state and the President is the head only in name.

Bibliography
 The Constitution Of India amended upto 09 December 2020
 http://www.legalserviceindia.com
 http://www byjus.com
 http://www.writinglaws.com