POWERS & DUTIES OF PRESIDENT :
President of India is the head of executive power of the Union. Supreme Court defines executive power as
“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily it connotes the residue of governmental functions that remain after legislative and judicial functions are taken away subject, of course, to the provision of the Constitution or of any law. “
“Executive function comprises both the determination of the policy as well carrying out it into execution, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact, the carrying on or supervision of the general administration of the State.”
Limitations of President’s power:
• President must exercise his powers according to the Constitution otherwise he will be liable to be removed by the process of impeachment.
• After 42nd amendment of constitution in 1972, President shall exercise his functions and act in accordance with advice of Council of Ministers and in 44th amendment of 1976, President is given power to send advice for reconsideration to CoM once after that He is bound to accept it.
Therefore, it may be said that the powers of the President will be the power of his ministers, in the same manner as the prerogatives of the English Crown have become the ‘privileges of the people’.
Subject to above limitations, President’s power can be classified as following
• Administrative power that is the execution of the laws and the administration of the departments of the government.
• Military power that is the command of the armed forces and the conduct of the war.
• Legislative power that is the summoning, prorogation etc. of the legislature, initiation of and assent to legislation and the like.
• Judicial power that is granting of pardons, reprieves etc. to persons convicted of crime.
Unlike American president who is read head of the executive, Indian counterpart shall not have any administrative function to discharge nor shall he have that power of control and supervision over departments of the Government. But though the various departments of government of the Union will be carried on under the control and responsibility of the respective ministers in charge, the President will remain the formal head of the administration and all executive actions taken of the Union must be expressed to be taken in the name of president. [Article 77]All officers of GoI will be President’s subordinates. President has power to appoint and remove following state dignitaries:
• Prime Minister, Other Ministers of Union Government, Attorney general for India, CAG, Governor, Finance Commission, UPSC commission, CEC and other members of EC, A special officer for SC and ST, Commison to report on administration of Scheduled areas, a commission to investigate into the condition of backward classes, A commison of Official language, A special officer for linguistic minorities, A commission to investigate intereference with water suppies.
• Judges of SC and HC on the consultation of CJI
The military powers of the Indian President shall be lesser that those of either the Americans President or of an English Crown. The supreme command of the defence forces is vested into President and exercise of this power shall be regulated by law( Parliament) whereas President of USA has this power independent of legislative control.
Diplomatic power ie power over foreign or external affairs
It comprises “all matters which bring the union into relation with any foreign country”. The legislative power as regards to these matter as well as the power of making treaties and implementing them belongs to parliament. But Legislature can not take the initiative in such matters. Thus, the task of negotiating treaties and agreements with other countries, subject to ratification by Parliament, will belong to the President acting on aid and advice of his Ministers.
President will represent India in international affairs and will have the power of appointing Indian representatives to other countries and of receiving diplomatic representatives of other states, as shall be recognized by parliament.
President is Part of Union parliament like Crown of England. Here Indian constitution departs from American constitution’s principle of separation of powers among executive, legislature and judiciary. Legislative power of President can be kept under following points
1. Summoning, prorogation and dissolution of both houses of Parliament, and can summon joint sitting of both houses.
2. The Opening address to joint parliament sitting after each General election and first session of each year. Generally opening address is used to announce the programme of the Cabinet for the session and to raise a debate as to the political outlook and matters of general policy or administration.
3. Right to address both houses individually as well as jointly at any time.(article 86). Indian President shall have the right to send messages to either house either in regard to any pending bill or to other matter, and the house must then consider the message. This provision has never used till now by any president.
4. Nominating certain members to the houses that is 12 members having special knowledge or practical experience of literature, science, art and social service(article 80) to Rajya Sabha and 2 member of Anglo – Indian community to Lok Sabha, if he is of opinion that the community is not adequately represented in Lok Sabha.(331)
5. Laying reports like Budget, Supplementary statement, report of Auditor General, recommendations of FC, report of UPSC, report of specail officers for SC/ST and linguistic minorities, report of commission of backward classes before parliament.
6. Previous sanction or recommendation of President for introducing legislation on some matters such as a bill for formation of new state or alteration of boundaries of existing states, a bill providing for any matters specified in art 31A, a Money bill, a bill that requires expenditure from Consolidated fund of India, a bill affecting taxation in which states are interested and state bills introducing restriction on trade.
7. Assent of president is required for a bill to be an act and president has power to withhold his assent(veto power) to the bill or send it(except money bill) back to parliament for reconsideration and if parliament passed the bill without amendment after such reconsideration, president is bound to give his assent.(art. 111). Veto can be classified in 4 categories- absolute veto(his dissent can not be overridden), qualified veto(can be overridden by extraordinary majority(2/3rd in many cases like in America), pocket veto(possessed by American President, if pres neither sign nor return the bill) and Suspensive veto(if it can be overridden by parliament by a simple majority as of French President). Veto power of Indian president is combination of absolute, suspensive and pocket veto.
8. As per article 201, President shall have the power of disallowance or return for reconsideration of a bill of the state legislature, which have been reserved for his consideration by the Governor of the State. If state bill would derogate power of HC, then this reservation is compulsory under article 200. The bill send for reconsideration should be discussed in state legislature with 6 months and sent back to President and this time president is not bound to give his assent and if he refuses the bill this time, bill fails.
No time limit is imposed by the Indian constitution upon the president either to declare his assent or that he withholds his assent unlike American constitution where this time period is 10 days. Therefore, it would be open to the president to keep a bill of either state legislature or parliament pending at his hands for an indefinite period, without expressing his mind. In strictly Federal constitutions like Australian or American constitution, the states are autonomous within their sphere and so there is no scope for Federal executive to veto measures passed by the state legislature. India has adopted a federation of the Canadian type that is a federation system with unitary bias.
9. Article 123 says, President shall have power to legislate by Ordinances at a time when it is not possible to have a parliamentary enactment on the subject immediately. Subject to constitutional limitations as on Parliament’s legislative power, Ordinance may be of any nature as parliamentary legislation may take, it may be retrospective or may amend or repeal any law or act of Parliament itself.
The ordinance thus passed must be laid before parliament as soon as it reassemble and shall automatically cease to have effect at the expiration of 6 weeks from date of reassembly unless disapproved earlier by parliament.
Ordinance making power is legislative power of executive and is unimaginable in constitutions which prescribes doctrine of Separation of power among judiciary, executive and legislature.
This power is retained in our constitution to deal with serious and imminent circumstances which call for the immediate legislation and can not tolerate delay due to summoning the legislature and getting measures passed in ordinary course of legislation.
38th amendment by Indira Gandhi government laid down that the president’s satisfaction shall be final and could not be questioned in any court on any ground to silence judicial interference but 44th amendment overturned this change and Supreme court’s view in Cooper’s case, that is the genuineness of President’s satisfaction could possibly be challenged in a court of law on the ground that it was mala fide, still applies.
A parliamentary safeguard has been put in place by making a rule of Lok Sabha requiring that whenever the government seeks to replace an ordinance by a bill, a statement “explaining the circumstances which necessitated immediate legislation by Ordinance must accompany such Bill.”
President is given power to pardon under article 72 to persons who have been tried and convicted of some offence. Pardoning power is given to heads of executive to correct possible judicial errors and almost all constitution gives such power to heads of executive. SC has laid down following principles for this power
Kehar Singh case:
• No guidelines be laid down by SC for exercise of such power
• The convict seeking relief has no right to insist on oral hearing before president
• The power should be exercised on advice of CoM
• The president can go into merit of case and take a different view
• Exercise of such power by pres is not open for judicial review except to the limited extent that is the court can interfere only where the pres decision is wholly irrelevant to the object of Article 72 or is irrational, arbitrary, discriminatory or mala fide.
Pardoning power comprises group of following analogous powers
• Pardon – It rescinds both the sentence and the conviction and absolves the offender from all punishments and disqualification.
• Commutation – It substitutes one form of punishment for another of a lighter character that death sentence to life imprisonment or life imprisonment to simple imprisonment.
• Remission – Reduces amount of sentence without changing its character.
• Respite – awarding lesser sentence instead of the penalty prescribed in view of some special face eg, the pregnancy of a women offender.
• Reprieve- a stay of execution of sentence.
Under Indian constitution, the president has the power to grant pardon, reprieve, remission, respite or commutation in respect of punishment or sentence by court-martial, punishment or sentence is for an offence against a law relating to a matter to which the executive power of union extends and death sentences. Please note that Governor has only power of reprieve, remit or commute a death sentence and no pardoning power for such a sentence. Also Governor can not entertain cases of court-martial.
President is given power to make a “Proclamation of Emergency” on ground of threat to the security of India or any part thereof, by war, external aggression or armed rebellion(352). He has power to make a proclamation that the Goverment of a state can not be carried on in accordance of provisions of constitution and by proclamation, he may assume to himself any of governmental powers of state(356,365). He can also declare financial emergency in situation arisen out of threatened financial stability or credit of India. (360).