Article 53 vests powers in the President who carries out the business of government or affairs of state excepting functions, which are vested by the Constitution in any other authority.
This ambit of the executive power has been expanded by the Supreme Court:
The executive function comprises both the determination of the policy as well as carrying in 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. But, there are several constitutional limitations under which he has to exercise his executive powers. He must exercise these powers according to the Constitution which requires that ministers (other than the Prime Minister) can be appointed by the President only on the advise of the Prime Minister.
If the President violates any of the mandatory provisions of the Constitution, he can be removed by the process of impeachment. The executive powers are exercised by the President in accordance with the advise of his council of ministers. Prior to 1976, he was not bound to act in accordance with the advice tendered by the council of ministers.
The 42nd Amendment Act, 1976 has amended Article 74(1) as under:
There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
The word ‘shall’ makes it obligatory for the President to act in accordance with ministerial advice.
But the 44th Amendment Act added a Proviso to Article 74(1) which says:
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 the advice tendered after such reconsideration. The net result after the 44th Amendment, therefore, is that except in certain marginal cases referred to by the Supreme Court, the President shall have no power to act in his discretion. If the council of ministers adheres to their previous advice, the President shall have no option but to act in accordance with such advice. The power to return for reconsideration can be exercised only once, on the same matter.
The various powers that are included within the comprehensive expression ‘executive power’ can be classified as under:
Not being a real head of the executive like the American President, the Indian President does not have any administrative function to discharge nor does he has the power of control and supervision over the departments of the government. The various departments of government of the Union are carried on under the control of the respective ministers and the President remains the formal head of the administration.
All executive action of the Union is taken in the name of the President. Though, he is not the ‘real’ head of the administration, all officers of the Union are his ‘subordinates’ and he has a right to be informed about the affairs of the government. The administrative power also includes the power to appoint and remove the high dignitaries of the state. In making appointments, the President is required to consult persons other than his ministers as well.
Thus, in appointing the judges of the Supreme Court, the President shall consult the Chief Justice of India and such other judges of the Supreme Court and of the High Courts, as he may deem necessary.
The President also has the power to remove:
(i) His ministers, individually;
(ii) The Attorney-General of India;
(iii) The Governor of a state;
(iv) The chairman or a member of the Public Service Commission of the Union or of a state on the report of the Supreme Court;
(v) A judge of the Supreme Court or of a High Court or the Election Commissioner, on an address of Parliament.
The Indian Constitution makes the ‘Union Public Services and the Union Public Service Commission’ a legislative subject for the Union Parliament, and by making it obligatory on the part of the President to consult the Public Service Commission in matters relating to appointment, except in certain specified cases.
The military powers of the Indian President are much less than those of the American President and the English Crown. The supreme command of the defence forces is vested in the President, but the Constitution expressly lays down that the exercise of this power shall be regulated by law. The President’s powers as Commander-in-Chief cannot be construed, as a power independent of legislative control. The Constitution enjoins that certain acts cannot be done without the authority of law. The President must approach the Parliament. Article 114(3) demands that money for raising, training and maintenance of the defence forces has to be passed by the Parliament.
The diplomatic powers and functions comprise “matters which bring the Union into relation with foreign country”. The legislative power about these matters and the power to make treaties and implementing them belongs to Parliament. But, the final power in these matters vests in Parliament. The task of negotiating treaties and agreements, subject to ratification by Parliament the President who acts on the advice of his ministers. He has the power of appointing Indian diplomats to other countries and of receiving foreign diplomats as recognized by Parliament.
The legislative powers of the Indian President are varied and comprehensive. Like the English Crown, our President has the power to summon or prorogue the houses of Parliament and to dissolve the lower house. He can summon a joint sitting of both houses of Parliament m case of deadlock between them (Articles 85 and 108).
He addresses both houses of Parliament assembled together, at the first session after each general election to the House of the People and at the commencement of the first session of each year, and “informs Parliament of the causes of its summons”. Apart from the right to address, the President has the right to send messages to either house of Parliament about pending Bills, or to other matters which the House must consider. The President has the power to send messages not only on legislative matters but ‘otherwise’ also.
The President has been given the power to nominate twelve members to the Council of States, persons who possess special knowledge or practical experience of literature, science, art and social service. He is also empowered to nominate not more than two members to the House of the People from the Anglo-Indian community, if it is not adequately represented in the house.
It is the duty of the President to cause to be laid before Parliament:
(a) The Annual Financial Statement (Budget) and the supplementary statement, if any;
(b) The report of the Auditor-General relating to the accounts of the Government of India;
(c) The recommendations made by the Finance Commission, together with an action taken report;
(d) The report of the Union Public Service Commission, explaining the reasons for non-acceptance of the advice;
(e) The report of the special officers for Scheduled Castes and Tribes; Backward Classes and linguistic minorities.
The Constitution requires the previous sanction of the President for introducing legislation on certain matters. The courts are debarred from invalidating any legislation on the ground that the previous sanction was not obtained, and the President has assented to the legislation (Article 255).
These matters are:
i. Formation of new states or the alteration of boundaries of existing states (Article 3).
ii. Providing for matters specified in Article 31A (1).
iii. A Money Bill [Article 117(1)].
iv. A Bill which would involve expenditure from the Consolidated Fund of India even though it is not a Money Bill.
v. A Bill affecting taxation in which states are interested, or affecting the principles laid down tor distributing moneys to the states and State Bills imposing restrictions upon the freedom of trade. Every Bill needs the assent of the President. He has three options – he may assent; or withhold his assent; or (in the case of Bills other than Money Bills) return the Bill for reconsideration of the Houses, with or without a message.
A Money Bill cannot be returned for reconsideration. In case of return, if the Bill is passed again by both houses of Parliament, it would be obligatory upon him to declare his assent to it. From the standpoint of effect on legislation, executive vetos have been classified as absolute, qualified, suspensive and pocket vetos.
The Indian President enjoys a combination of all the three. If, instead of refusing his assent outright, he remits the Bill or any part of it for reconsideration, a re-passage of the Bill by an ordinary majority would compel the President to give his assent. The effect of a return by the President is thus merely ‘suspensive’ and this power is not there in the case of Money Bills.
The Constitution does not prescribe any time limit within which the President should assent or refuse or to return the Bill. Article 111 says ‘as soon as possible’ after the Bill is presented to him. This absence of a time limit, permits the Indian President to exercise something like a ‘pocket veto’ or a desk veto for an indefinite time. The President may disallow or return a Bill of the State Legislature for reconsideration reserved by the Governor.
Reservation of a State Bill for the assent of the president is a discretionary power of the Governor who may assent or withhold his assent or reserve the Bill for the consideration of the President. If a Money Bill is so reserved, the President may either declare his assent or withhold his assent. But in the case of the Bill, other than a Money Bill the President may, direct the Governor to return the Bill to the legislature for reconsideration.
In this latter case, the legislature must reconsider the Bill within six months but it shall not be obligatory upon the President to give his assent. He may keep a Bill of the state legislature pending for an indefinite period of time, without expressing his mind.
There is no provision in the Constitution to a direct disallowance of state legislation by the President, but the bills reserved by the State Governor for assent of the President can be disallowed. There is no way to override the President’s veto on state legislation. So, the Union’s control over state legislation is absolute, and the President is entitled to refuse his assent without assigning reasons.
The President enjoys the power to legislate by ordinances whenever the parliamentary enactment on the subject is needed. The ambit of this ordinance-making power is co-extensive with the legislative powers of Parliament, with its constitutional limitations. Thus, an ordinance cannot contravene the fundamental rights like an Act of Parliament. Article 13(3)(a) lays down that ‘law’ includes an ‘ordinance’ which has to be laid before Parliament when it reassembles.
It automatically ceases to have effect at the expiration of six weeks. The ordinance-making power is available to the President only when either of the two houses of Parliament has been prorogued or is otherwise not in session. Even when the legislature is not in session, the President promulgates an ordinance only when he is satisfied that there are circumstances which render it necessary for him to take ‘immediate action’. The promulgation of an ordinance is not dependent upon the existence of an armed rebellion or external aggression.
The ‘pardoning power’ comprises a group of allied powers each of which has a distinct legal consequences, VIZ., pardon, reprieve, respite, remission, suspension, commutation. A pardon rescinds both the sentence and the conviction and absolves the offender from all punishment and disqualification. Commutation merely substitutes one form of punishment for another of a lighter character.
The sentences of death; rigorous and simple imprisonments; fine, amount of sentence can be reduced without changing its character. Respite means awarding a lesser sentence instead of the penalty prescribed, in view of some special fact, like pregnancy of a woman offender.
Reprieve means a stay of execution of a sentence, pending a proceeding for pardon or commutation. The President has the pardoning power in respect of all cases of punishment by a Court Martial, (the Governor does not have such powers) offences against laws made under the Union and Concurrent Lists. The only authority of pardoning a sentence of death is the President.
The President has been vested with powers which may be called residuary in nature.
He has the constitutional authority to make rules and regulations relating to matters, such as:
(1) Authentication of his orders;
(2) Custody of and withdrawal of money from the public accounts of India;
(3) The number and service conditions of members of the Union Public Service Commission;
(4) The procedure of joint sittings of the houses of Parliament;
(5) The manner of enforcing the orders of the Supreme Court;
(6) Emoluments payable to a Governor appointed for two or more states;
(7) The discharge of the functions of a Governor in contingency and
(8) Specifying of Scheduled Castes and Scheduled Tribes.
He is empowered to give instructions to a Governor to promulgate an ordinance if a Bill containing the same provisions requires the previous sanction of the President. He can refer any question of public importance for the opinion of the Supreme Court. He has the power to appoint commissions for the purpose of reporting on specific matters, such as, commissions to report on the Administration of Scheduled Areas and Welfare of Scheduled Tribes and Backward Classes; the Finance Commission; Commission on Official Language; and Inter-State Council.
The President enjoys several special powers relating to ‘Union Territories’, or territories which are directly administered by the Union. The administration of such territories is responsible to him alone. He has the final legislative power (to make regulations) relating to the Andaman and Nicobar Islands; the Lakshadweep; Dadra and Nagar Haveli; and may even repeal or amend any law applicable to such territories.
He enjoys special powers in respect of the administration of Scheduled Area and Tribal Area in Assam. A Tribes Council may be established by the direction of the President in any state having Scheduled Areas and also in states having Scheduled Tribes therein but not Scheduled Areas.
The President enjoys protection from criminal proceedings against him in courts of law. This privilege is covered under Article 361 of the Constitution which does not restrict the instrumentality of Article 61. He cannot be arrested and produced before any court. No criminal proceedings can be instituted nor can a writ be filed against his or her actions. However, a civil suit can be filed against him, for an action that he or she has performed in his or her personal capacity before or after joining service.
Articles from 352 to 360 of the Indian Constitution talk about three kinds of emergencies in which the President of India may play a special kind of role because these situations leave a wide lee way for the President to take decisions in his discretion. National emergency, break down of the Constitution in a state and financial emergencies are abnormal situations which have been stipulated to tide over the crises till the situation returns to normal.
In fact, it is a hangover from the Government of India Act 1935 under which the Governors and Governor-Generals used to take care of the political situation in imperial interest. The national leaders who were highly critical of these provisions found them indispensable to keep the country together and avoid mishaps in the working of democracy.
The Constituent Assembly members were skeptical about the intensity and scope of emergencies. Yet, there was a general agreement that the fragile Union needed a protective ring around it and, hence, the presence of these provisions was considered appropriate. Viewed from the constitutional angle alone, these powers can turn the President into an unabashed autocrat, but the practice of this power will be within restraints of the system.
(i) National Emergency:
The Article 352 states that if the President is satisfied that a grave emergency exists due to which the security of India or any part thereof is threatened, whether by war or internal disturbance, he may proclaim an emergency. Its duration, in the first instance will be two months. Within two months, it has to be ratified by the Parliament. If the Lok Sabha stands dissolved, the consent of the Rajya Sabha has to be sought within two months.
If the Rajya Sabha does not pass it, the emergency becomes void. If it gets passed, then too, it should be approved by the newly constituted Lok Sabha within one month. After it has been passed by both the houses, it will continue as long as the President desires. However, the period cannot exceed more than six months at a time.
In India, emergency under this article has been declared three times. During this kind of emergency, the term “if the President is satisfied” could mean that he does not have to consult the cabinet. It is not necessary that an external aggression must be actual, potential threat or anticipation of danger is adequate.
The life of the Lok Sabha can be extended by one year’s at a time by the President with the possibility of indefinite renewal. During this time, the Parliament is empowered to frame laws on the subjects of the State List. The President can issue directives to governments. He will have the right to alter or amend the distribution pattern of financial resources between the Centre and the states.
Even the fundamental rights can be suspended selectively or m the entire country. In 1975, when Prime Minister Indira Gandhi got National Emergency declared by President Fakhruddin Ali Ahmad, the President played no role and followed the parliamentary procedure. But the national emergency did not disturb the state governments and fundamental rights were selectively suspended in some states only. Amendment 42nd was the product of this situation and three judges of the Supreme Court were superceded. But then Amendment 44th restored the status quo anti and elections were held to repair the damaged system.
(ii) President’s Rule in States:
The second kind of emergency under Article 356 is popularly known as President’s rule in a state which can be declared by the President on the Governor’s report that the government of the state cannot be run in accordance to the provisions of the Constitution. The proclamation has to be approved by both the houses in the same manner as the first kind of emergency, but by a simple majority.
The proclamation, in the first instance, is applicable for two months and, after ratification by the Parliament for a period for six months, unless revoked earlier. It can be extended again and again for six months each time but should not exceed more than three years. The consent of the Governor is imperative because the President must have trust in his own nominee. The Governor’s report cannot be open to public inspection.
It may bring a suspension of fundamental rights and the President can dissolve the state legislature or put the same in a state of suspended animation. The state cabinet may be dissolved and the laws and budget of the state will be passed by the Union Parliament. The Parliament can authorize the President to sanction expenditure from the Consolidated Fund of the state but the President will not interfere with the jurisdiction of the state High Court.
(iii) Financial Emergency:
Article 360 states that if the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of it is threatened, he may proclaim a financial emergency. This state should also be approved by the Union Parliament.
This is also applicable for two months in the first instance, but the Parliament, by simple majority can extend the period. During this time, the President can issue directions to the state governments to observe such canons of financial propriety as may be specified in the directions. He may order reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a state.
A provision can be made requiring all money bills to be reserved for the consideration of the President after they are passed by the legislative assembly of the state. The financial emergency has never been declared although we have been very close to it. This situation gives sweeping powers to the President in the Union executive to discipline the state government from taking overdrafts from the Reserve Bank of India or other banks.
The amendments 38th, 42nd, 44th and the 59th have revised the situation. The 38th Amendment Bill which was passed in 1975, made it clear that the President could issue different proclamations of emergency on different grounds, whether or not there was a proclamations already in existence and in operation.
It also made the satisfaction of the President in the matter final and conclusive and not challengeable on any ground. By the 42nd Amendment, the period of six months in relation to Article 356 was raised to one year. The words ‘armed rebellion’ have been substituted in place of ‘internal disturbance’ vide the 44th Amendment.
It could be the actual breakdown of the state machinery or an attempt by the ruling party to overthrow opposition governments. Therefore, the insertion of the words ‘armed rebellion’ is more meaningful. The President can issue a proclamation only if the unanimous decision of the cabinet in this regard has been communicated to him in writing.
Moreover, the Presidential order cannot suspend the fundamental rights of an arrested person to move a court and ensure that an individual is not deprived of his immunity from ex-post facto penal law. The mere satisfaction of the President is sufficient in this case. All fundamental rights, can be suspended and the press can be forced to fall in line. No judicial authority could call Presidential ‘satisfaction’ in question. In the term, ‘satisfaction of the President’ in reality, becomes the will of the PM then the human rights get jeopardized.
Notwithstanding the utility of emergency provisions, all governments in India will have to strike a balance between the threatened chaos and repression of human rights in a democratic polity. The founding fathers were apprehensive and Mr Kamath staged a symbolic walkout calling the day of enactment as a day of shame and sorrow. Several members condemned the emergency provisions as ‘a chapter of reaction and retrogression’.
The President was seen as democratic despot in a totalitarian democracy. The misgivings have proved right as well as imaginary. Instances of presidents like V.V. Giri, Fakruddin Ali Ahmad, Gyani Zail Singh and even K.R. Narayanan are being quoted to push the arguments on either side. Mistrust in the strength of democratic institutions is natural but the role given to the Parliament is relevant and effective. The ratification of emergency by the Union Parliament must make the vigilant Parliament assert and prevent the abuse of emergency provisions by a cynical incumbent of the high office.
Similarly, it will be pessimistic to see malafide intentions of the Union government in declaring the Presidents’ rule in a state. Union government has a key role in maintaining internal security and restoring political stability in all the states. Article 356 has been a much maligned provision of our federal arrangement.
It is true that its political abuse against ether party governments, mostly coalitional, has caused much hue and cry. But the Supreme Court has intervened quite constructively in Bomai Case and Buta Case and the procedures about Governor’s Report, Cabinet decisioning and Presidential assent have become reasonably streamlined after the 44th Amendment. Formerly the Presidents were forced to act as a mere rubber stamp and the Governors were seen as ‘Villains of Peace’.
As democracy matures the President, the Prime Minister and the Governors are realising it to their predicament that the provision has little discretion for any individual incumbent. The Union Council of Ministers and its Prime Minister should accept the responsibility and nobody can be made a scape-goat for the errors of commission or omission. The check and balance system of decisioning has emerged as a healthy check upon the suspect intentions of the President. It is a welcome development which represents the will of the founding fathers.
As a political head of the parliamentary government the Indian President should be a phantom king without crown. In Dr Ambedkar’s view he should represent the nation but should not rule over the nation. He conceded that unlike the British monarch he will not be a golden zero or a mere rubber stamp. He enjoys the suspensory veto of returning the bills to the Council of Ministers or ask for a reconsideration of its advice.
The Prime Minister has a constitutional obligation to keep him informed about administrative decisions and legislative proposals. He may call for these proposals at his own initiative. Even individual minister’s decisions may be referred by him to the Council of Ministers. All this implies that ministerial advice does not mean an instant acceptance. He is within his Presidential prerogative to make specific objectives or suggestion asking the minister in council to reconsider the entire matter.
The non-acceptance of presidential advice by the Council of Minister is not easy and he can create situations in which the Prime Minister will have to persuade his colleagues to tender due regard and weightage to Presidential dissent. Of course he does not have the last word and will accept the democratic verdict of the House which the Prime Minister represents.
Notwithstanding the federal nuances of the Union government, the President in India has to work with the Prime Minister. The Constituent Assembly declared him a Formal Head in unambiguous terms. Critics have their own reservation and think that impeachment is too weak an instrument to keep him within limits. Petty differences apart even the Presidents like Zail Singh and K.R. Narayanan never allowed the dignity of the high office to be compromised.
The amendments 42nd and 44th have little to do with the Presidential ambitions. In fact the office of the Prime Minister was made extra powerful under 42nd Amendment. The 44th Amendment constitutionalised the Prime Ministerial position by making the President a democratic check on populist dictatorship. In its ultimate the Indian President accepts the position that like the British Crown.
He has a right to be consulted, right to encourage and even right to warn. No sensible President of a plural democracy must demand or need anything more. Matters like dissolving the Lok Saha and selection of the incumbent for the office of Prime Minister in case of hung parliaments may cause temporary aberrations but no indirectly elected President will be in a position to run the country without a popular mandate which the party and its majority leader represents.
Suggestions like that of National government for sometime, as advanced by former President Venktaraman might be worth a trial during emergency, but a huge democracy of India’s size and diversities may replace party politics by alliance politics and make the Prime Minister more powerful. So long India opts to stay in a parliamentary frame any confrontation between the President and the Prime Minister will sooner than later go in favour of the latter.
The Council of Ministers and the Prime Minister on its behalf is expected to aid and advice the President. The legal quibbling’s must be resolved in the light of British conventions. Advises are merely recommendatory and aid implies running of the government under the seal and signatures of the head of the state.
The advise is tendered and aid is rendered by the cabinet which represents the popular aspirations through elected representatives. The President must respect this advise. If the Prime Minister disrespects the popular verdict his government can be voted out by a vote of non confidence. But no President can be impeached just because he violated the advice of the Council of Ministers.
The British Crown is a working hypothesis and so is the Indian President. If the Prime Minister or cabinet are not there, the President must create the alternate government of a new Prime Minister. If he wants to get the Lok Sabha dissolved prematurely, the President may not accept the advice and experiment with alternative government in national interest.
Unlike the British system, the Indian Constitution binds the President to consult various dignitaries other than the Prime Minister in different areas of government. Chief Justice of India, Chief Election Commissioner are consulted under Article 217(3) and Article 103(2) respectively.
The Constitution specifically provides that these consultations or advises will not be inquired into by the law courts. Naturally the aid and advise are a part of parliamentary procedure. The Cabinet is not an advisory body but a decision-making political executive. The Governors in the state have some discretion because they can withhold assents for President’s consideration.
But the President has no such discretion. If he delays or denies he would be violating Article 74 of the Constitution which inter alia states “The President shall act in accordance with the advice (given by the PM and his Council of Ministers). The President may reprive the Council of Ministers to reconsider such advice – and shall act in accordance – after such reconsideration. Whether any and if so what advice, was tendered shall not be enquired into any court.” This closes all controversies and puts all doubts to rest. In fact the Presidency will never become what the President chooses to make it.