President of Indian : post, power and Function

President of India: Post, Power and Function refers to the constitutional office of the President, who serves as the nominal executive head and the first citizen of the country under the Indian Constitution. In Indian Polity, the President plays a crucial role in the parliamentary system by exercising executive, legislative, judicial, diplomatic, and emergency powers as prescribed by the Constitution. The office symbolizes the unity, integrity, and continuity of the Indian State.

Role of president in Indian Democracy

• Part V of the Constitution contains details of the Union Executive from Articles 52 to 78.
• The executive body of the association comprises:

1. President (Head of State)
2. Vice President
3. Prime Minister
4. Council of Ministers
5. Attorney General

The President is the first citizen of India and a symbol of the unity, integrity and strength of the nation.

• Arguments in favour of indirect election of the President:
  • India has a parliamentary system; the President has no real powers.
  • Direct elections would have been expensive and time-consuming.
  • Holding elections only from Parliament would result in dominance of the Centre, which would not lead to proper representation of the states.

Parliamentary system of government (India)

• The term “parliamentary system” does not appear in the Constitution, but in the Kesavananda Bharati case (1973) it was considered to be the basic structure of the Constitution.
• The executive is formed from the legislature (Parliament).
• The executive is answerable to the legislature.
• There are two types of executive:
  • Nominal/Ceremonial Executive (President)
  • The real executive (Prime Minister and Council of Ministers)
• The President is the nominal/constitutional/ceremonial head of the executive and the Head of the State.
• The Indian Constitution provides for a parliamentary form of government, with the President as the sole executive head. The President’s powers are vested in a Council of Ministers headed by the Prime Minister, who exercises his executive powers with the aid and advice of the Council of Ministers.

Provisions in the Constitution (Articles 53, 74, 75):

• Article 53:The executive power of the Union is vested in the President and is exercised by him through officers subordinate to him.
• Article 74: The President is advised by a Council of Ministers headed by the Prime Minister, and the President exercises his functions on the advice of the Council of Ministers.
• Article 75: The Council of Ministers is collectively responsible to the Lok Sabha.
• Constitutional Amendment:
  • 42nd Constitutional Amendment (1976):This amendment makes the advice of the Council of Ministers headed by the Prime Minister binding on the President.
  • 44th Constitutional Amendment (1978):The President was given the power to ask the Council of Ministers for reconsideration, but he is bound to accept the advice given again by the Council of Ministers.
• Advantages of the present system:
  • There is balanced representation of both the states and the Centre.
  • The elections remain favourable to the parliamentary system.
  • The Supreme Court held the President to be a ceremonial/nominal head in the following cases:
    • Rai Saheb Ram Jawaya Kapoor vs. State of Punjab (1955)
    • Shamsher Singh v. State of Punjab (1974)
    • U.N. Rao vs. Indira Gandhi (1975)

• The Constituent Assembly rejected the presidential system and chose the parliamentary system.

Origin of the word ‘President’

• The term “President” was first proposed by Dr. Shyama Prasad Mukherjee on 30 April 1947.
• Ultimately, the Constituent Assembly adopted the designation “The President of India” on the suggestion of Dr. Ambedkar and K.M. Panikkar.
• The President is the first citizen of India and this is the meaning of the word ‘Republic’ mentioned in the Preamble of the Constitution.
  • The president is elected, not hereditary like a king.

Rashtrapati Bhavan and other residences

1. President’s House:
   • Built on the design of British architect Edwin Lutyens.
   • Built as the Viceroy’s residence after the declaration of Delhi as the capital in 1911.
   • The Viceroy lived here until 1950.Location – Raisina Hills, New Delhi.
2. The Retreat Building:
   • Location: Dharbara (Shimla, Himachal Pradesh).
   • Summer residence of the President.
3. Rashtrapati Nilayam:
   • Location – Hyderabad, Telangana.
   • It is also called Residency House.
   • The President usually stays here during his visit to South India in December–January.

Articles related to the President

Article	Theme
52	President of India
53	Executive power of the Union
54	Presidential election
55	Method of election of the President
56	Presidential term
57	Qualification for re-election
58	Qualifications for election as President
59	Conditions of the President’s office
60	swearing-in by the President
61	process of impeachment of the president
62	Time for holding elections to fill a vacancy in the office of President
65	Vice-President acting as President
70	Discharge of the President’s functions in such other contingencies as Parliament may deem fit
71	Matters relating to the election of the President
72	President’s power to grant pardons, etc., and to suspend, pardon or remit punishment in certain cases
74	The Council of Ministers provides advice and assistance to the President.
75	Other provisions relating to ministers, such as appointment, tenure, salary, etc.
76	Attorney General of India
77	Conduct of proceedings by the Government of India
78	Responsibilities of the Prime Minister in relation to supply of information to the President, etc.
85	Sessions, prorogation and dissolution of Parliament
86	President’s address and message
87	Special address by the President
111	Giving assent to bills passed by Parliament
112	Federal Budget (Annual Financial Statement)
123	Ordinance-making power of the President
143	Power of the President to seek advice from the Supreme Court

Article 52: President of India

• There will be a President in India.
• He will be the Head of the State.
• Article 52 is the shortest article of the Constitution.

K. T. Shah’s views (in the Constituent Assembly)

He was in favour of using the words “Chief Executive of the Union of India” and “Head of the State” in place of the word ‘President’.He was in favour of electing the President through adult franchise.

Article 53: Executive power of the Union

• 53(1) – The executive power of the Union shall be vested in the President, who shall exercise it either directly or through officers subordinate to him in accordance with the Constitution.
  • There is no definition of executive power in the Constitution.
  • This article is influenced by section 7 of the Government of India Act, 1935.
• 53(2) – The President holds the Supreme Command of the Defence Forces. Its exercise shall be regulated by law.
• Article 53(3) makes it clear that:

1. No existing law conferring power on any State Government or other authority to do any act shall be deemed to confer that power on the President.
2. Parliament has the power to confer functions by law on any authority other than the President.

Article 54: Election of the President

• The President is not elected by direct voting.
• Electoral CollegeThe election is conducted by a committee consisting of:
  1. Elected members of both houses of Parliament
  2. Elected members of state legislatures
  3. Elected members of the Legislative Assemblies of the Union Territories of Delhi and Puducherry
• [Delhi and Pondicherry were added by the 70th Constitutional Amendment (1992).] [This Act came into force from 1 June 1995.]
  • The first presidential election held after this was the 1997 presidential election.
  • In this election, K. R. Narayanan was elected (10th President of India).
  • According to the Constitution, Union Territories are not directly represented in the Presidential Electoral College.
  • But the elected members of the Legislative Assemblies of Delhi and Puducherry are considered as ‘States’ under Article 54(B).
  • Therefore, their elected members also have a place in the electoral college of the President.

Derek O’Brien (Trinamool Congress):

• Elected Rajya Sabha member from West Bengal in 2011.The first Anglo-Indian to be elected to Parliament.
• He became the first Anglo-Indian voter to vote in the 2012 presidential election.

Constitutional Amendments (after 25 January 2020):

• The provision of nominated members of Anglo-Indians in the Lok Sabha and State Legislative Assemblies was abolished.

• Who doesn’t participate?

1. Nominated members of Parliament and Legislative Assemblies
2. Members of State Legislative Councils (elected and nominated)
3. Members of dissolved Legislative Assemblies (if elections have not been held)

Article 55: Manner of election of the President

Main provisions

1. Uniformity of representation of states will be ensured.
2. Equivalence between the States and the Union.
3. System of proportional representation (Provisional No. 55(3)) – Single transferable vote system.

Method of Election:

• By a system of proportional representation
• Single Transferable Vote System
• By secret ballot

There are two principles of the presidential election system.

1. Principle of symmetry and equivalence
   • The votes of elected members of Parliament and State Legislative Assemblies will be weighted.
2. Single transferable vote system theory

Principle of Uniformity

• The value of each MLA’s vote is determined.
• The same formula applies to all states

• Population base till 2026 → 1971 census.
  • 42nd Amendment (1976) → 1971 Census till 2000.
  • 84th Amendment (2001) → 1971 Census by 2026.
• Vote value example:
  • Uttar Pradesh – 208
  • Rajasthan – 129
  • Chhattisgarh – 129
  • Sikkim – 7
• Therefore, the vote value of an MLA varies in different states.

Theory of Equivalence (Parity).

• Sum of vote values ​​of MLAs of all states = Sum of vote values ​​of elected members of both the Houses of Parliament.

• Example (2017 presidential election):
  • Total vote share of the states → 5,49,474
  • Total vote value of Parliament → 5,49,408
    • Vote value of one MP → 708
• Statehood of Jammu and Kashmir abolished (2019) → Total vote value of MPs decreased.

Single Transferable Vote System

Method of Voting:

• The President is elected indirectly by secret ballot and single transferable vote of the proportional representation system.
• Each elector (MP/MLA) gets only one vote, but that vote is given in priority order (1, 2, 3…).Voters rank their preferences by ranking the candidates first, second, third, etc.
• It is also legal to omit some preferences.The voter has the right to give as many preferences as there are candidates in the election.

Procedure for counting votes:

• The Returning Officer first sorts out the invalid votes.
• Valid votes are divided into two parts:
  • Exhausted: In which only first preference is given and nothing further is written.
  • Unexhausted: In which more than one preference is given.
• Electoral Quota:To win, a candidate must obtain the electoral quota.

• If no candidate achieves the quota, the candidate with the lowest first preference is eliminated, and their votes are transferred to the second preference candidate.
• This process is repeated until one candidate achieves the quota.

Example:

• In the 1969 contest between V.V. Giri and Neelam Sanjiva Reddy, V.V. Giri won on the basis of second seed.

Election of the President – ​​Procedure and Provisions

Electoral system and countingI

• If no candidate secures the electoral quota even after counting all preferences → the last candidate left in the fray is declared elected.
• Criticism:
  • If the voters do not give second or other preferences then this system can become a simple majority system.
  • Difficulty may arise if there are more than two candidates and only one preference is expressed.
• The Constitution does not mention electoral quotas; this was clarified in the Presidential and Vice-Presidential Election Rules, 1974.
• Election symbols are not used in the presidential election (for fairness).

Election Conduct

• The President is elected by the Election Commission.
• The Secretary General of Lok Sabha/Rajya Sabha is appointed as Returning Officer in turn.
  • Returning Officer in the 2022 elections – Rajya Sabha Secretary General P.C. Modi.
• Notification:
  • Issued on or immediately after the 8th day before the expiry of the term of office.
  • Last date for nomination – 14th day from the date of notification.
  • Scrutiny the next day, then withdrawal of names the next day.
  • Polling – On or after the 15th day of withdrawal of nominations.
• Nomination papers – maximum 4.

ballot and voting

• Proxy Voting prohibited – Section 9, Act 1952.
• Only electors in preventive detention can vote by postal ballot (Rule 26, 1974).
• Ballot paper colour:
  • For Members of Parliament – ​​Green
  • For State Legislatures – Pink
• 2 columns in the ballot paper –
  • Name of the candidate
  • Order of Preference
• Elections are held by secret ballot, casting of votes is prohibited.
• NOTA is not an option.
• Whip not applicable → Elections beyond party politics.

Eligibility and security deposit for nomination

• 1952 Act – Proposer 1, Seconder 1, Security ₹0.1974 Amendment – ​​Proposers 10, Seconders 10, Security ₹2,500.
• 1997 Amendment – ​​Proposers 50, Seconders 50, Security ₹15,000.
• The security amount has to be deposited in RBI/Government treasury.
• If the candidate does not get even 1/6th of the required votes → Security deposit forfeited.

Disputes and judicial process

• Article 71: The Supreme Court will settle disputes regarding the Presidential/Vice-Presidential elections.
• The decision is final.
• The petition only –
  • the candidate himself, or
  • Can be given by at least 20 voters.
• The complaint must be made within 30 days of the election results.
• The Supreme Court hears cases through a Constitution Bench (5+ judges).
• Even if the election is annulled, the actions of the elected President are considered valid.
• 11th Amendment (1961) – Election cannot be called in question on the ground of any vacancy in the electoral college. (Article 74(4) added) – Later followed by Dr. Khare v. Election Commission (1959).

Defects in the presidential election process

• There is no participation of the general public
• dominance of the ruling party
• Influence of political parties
• pressure of party discipline
• The voting system is complicated.
• Unequal value of votes
• The possibility of independent candidates is negligible.
• Second preference controversial due to lack of majority
• There is no compulsion of discipline in voting.

Article 56: Term of office of the President

• The term of office of the President is 5 years (counted from the date of assuming office).
• The post of President can also become vacant before 5 years:
  • Resignation – given to the Vice President, who immediately informs the Speaker of the Lok Sabha.
  • Death
  • Impeachment – ​​For “Violation of the Constitution” under Article 61.

• Important provisions
  • Article 56(1)(a) – Term of office 5 years.
  • Article 56(1)(b) – Impeachment for violation of the Constitution (procedure in Article 61).
  • Article 56(1)(c)- The President continues in office notwithstanding the expiration of his term until a new President enters upon his office.

Article 62: Provisions relating to elections

• A new election is held before the President’s term ends.
• If there is a casual vacancy (death, resignation, impeachment, etc.), a new election must be held within 6 months.
• The new president is elected for a full 5-year term (not for the remainder of the term as in the US).

Article 65: Caretaker arrangement

• The Vice President acts as President in the event of the President’s absence, illness, or vacancy.
• If the post of Vice President is also vacant then the Constitution is silent.

Article 70 and the President (Discharge of Functions) Act, 1969

• Parliament was given the power to decide who would perform the functions of the President in such a situation.
• According to the 1969 Act:
  • Vice President
  • In the absence of the Vice President – ​​Chief Justice of the Supreme Court
  • In case the Chief Justice is unavailable – the senior most judge

• Historical Example (1969)
  • President Dr. Zakir Hussain passed away (3 May 1969) → Vice President V.V. Giri took charge.
  • V.V. Giri resigned to contest the presidential election (20 July 1969).
  • Following this, the then Chief Justice N. Hidayatullah assumed charge as Acting President.
  • Note: The term “Acting President” is not explicitly mentioned in the Constitution.

Article 57: Eligibility for re-election

• Any person who is or has held the office of President is eligible to become President again.
• The only President who was re-elected is Dr. Rajendra Prasad.
• This eligibility for re-election under Article 57 is subject to other provisions of the Constitution.

Article 58: Qualifications for election as President

• Eligibility for the post of President:

1. That person must be a citizen of India.
2. Must be 35 years of age or older.
3. Must be eligible to become a member of the Lok Sabha.

Prohibition on office of profit:

1. A person shall not be eligible to become President if he holds any office of profit under the Government of India, State Government, or local/other authority subordinate to them.
2. The President, Vice President, Governor, or Minister (Union/State) shall not be considered as an office of profit.
3. Parliament has the power to declare a particular post as an “office of profit”.

“Office of profit”: definition and provisions

• The definition of “office of profit” is not clear in the Constitution.
• The responsibility of defining it has been given to the Parliament.
• For this, the Members of Parliament (Disqualification) Act, 1959 was enacted.
• Jaya Bachchan vs. Union of India (2006): His membership of Parliament was justified in being terminated on the grounds that he held an office of profit.
• Pranab Mukherjee vs. PA Sangma (2012): The presidential election was challenged on the grounds of “office of profit.” The Supreme Court dismissed the challenge and upheld the election.
• There must be at least 50 electors (members of the Electoral College) as proposer and another 50 electors as seconders.
• A security deposit of Rs 15,000 must be made with the RBI. (Before 1997, the number of proposers and seconders was 10 each, and the security deposit was Rs 2,500.)
• The security deposit is forfeited if the candidate fails to secure one-sixth of the votes polled in the election.

Article 59: Conditions of office of the President

1. Terms and Conditions for Subscription
   • The President cannot be a member of either House of Parliament or any State Legislature.
   • If an MP or MLA is elected President, his membership will automatically be considered vacant from the date he assumes the office of President.
2. Prohibition on other posts
   • The President cannot hold any other post or office of profit during his tenure.
3. Salary and allowances
   • The President’s salary and allowances are determined by Parliament.
   • Until Parliament makes a law, the allowances given in the Second Schedule will be applicable.
   • While he is in office, no harmful change can be made in his salary.
   • The President will have the following facilities:
   • Use of government accommodation without paying rent.
   • Emoluments, allowances, privileges – as determined by Parliament by law.
   • The President’s salary is ₹5 lakh per month, as of the 2018 budget. Income tax-free.
4. The salary and allowances of the President cannot be reduced during his term of office.
   • Pension and benefits
     • After retirement, the President receives 50% of his salary as pension.
     • The expenditure on salaries, allowances and pensions is met from the Consolidated Fund of India.
     • The President will be entitled to pension and other benefits only if—
       • he has completed his term of office, or
       • Resigned voluntarily.
     • If the President is removed by impeachment, he will not get pension and facilities.

Article 60: Oath or affirmation by the President

• The oath of office of the President is administered by the Chief Justice of the Supreme Court.
  • If the Chief Justice is absent, the oath is administered by the senior-most judge of the Supreme Court.
• The President swears in his oath that he will:
  • Will preserve the Constitution.
  • Will protect the Constitution.
  • Will defend the Constitution.
  • Will work for the service and welfare of the public.
• The President only takes the oath of office.
  • Unlike ministers, the President is not administered the oath of secrecy.
• The oath of the President, Vice President and Governor is mentioned in Articles 60, 69 and 159.

Removal by Resolution/Address

• Some office-bearers can be removed by resolution, such as:
  • President,
  • Vice President,
  • Speaker and Deputy Speaker of the Lok Sabha,
  • Deputy Chairman of the Rajya Sabha,
  • Speaker and Deputy Speaker of the Legislative Assembly,
  • Speaker and Vice-Speaker of the Legislative Assembly.
• Other higher positions have special procedures (Address by Parliament):
  • Judges of the Supreme Court and High Courts,
  • Comptroller and Auditor General (CAG),
  • Chief Election Commissioner of India,
  • State Election Commissioner.      
    • To remove from these positions:
      • A majority of the total membership of each House of Parliament is required.
      • Also, after the address is supported by 2/3rd majority of the members present and voting
      • This motion is placed before the President in the same session and is removed by order of the President.
      • This provision is not in the Third Schedule.

Article 61: Procedure for impeachment of the President

• Grounds for Impeachment:
  • If the President violates the Constitution, the process of impeachment can be initiated in either House of Parliament (Lok Sabha or Rajya Sabha).
  • Any House of Parliament can propose a resolution accusing the President.
• Pre-conditions for bringing an impeachment motion:
  • Written notice must be given at least 14 days before the proposal is brought.
  • That proposal must be signed by at least 1/4th of the members of that House of Parliament.
  • The proposal will be considered passed only if it is passed by a 2/3 majority.

• Role of the Second House:
  • After the allegations are made, the second House itself conducts an inquiry or appoints a court/tribunal/body.
  • The President shall have the right to appear and present his side at the inquiry.
• Presidential authority
  • The President may present his side either in person or through a representative.
• Conditions for impeachment conviction:
  • If, after an inquiry, the other House passes a resolution stating that the charge has been proved, and the resolution is passed by a 2/3 majority, the President shall be removed from office, and this shall take effect immediately on the passing of the resolution.
• Thus, impeachment is a quasi-judicial process of the Parliament.
• Only members (elected and nominated) of Parliament (both Lok Sabha and Rajya Sabha) participate in the impeachment process.
• Elected members of state legislative assemblies and members of the legislative assemblies of Delhi and Puducherry, who participated in the presidential election, do not participate in the impeachment process.
• There is no provision for a joint sitting.
• All actions of the President during the process are considered valid.
• Till date, no impeachment motion has been passed against any President.
• A president removed after impeachment does not receive any pension or benefits. The Constitution is silent on whether he can be re-elected.

Related Article →

• Article 56(1)(b) → Mention of impeachment
• Article 61 → Procedure for impeachment
• Article 361 → Provisions relating to the investigation proces

Privileges of the President (Article 361)

• Nature of privilege
  • The President and the Governor enjoy privileges and immunities under Article 361.
  • This is an exception to equality before the law (Article 14).
• Privileges
  1. The President cannot be held accountable in any court for any act done while in office.
  2. No court can order his arrest or imprisonment during his term of office.
  3. No criminal proceedings can be initiated or continued against the President during his term of office.
  4. Civil proceedings will commence only if –
     • The President should have been informed two months in advance.

• Important facts
  • The Governor also enjoys these privileges.
  • But the Lieutenant Governor does not have this privilege.

• Historical facts
  1. Interim President –
     • Article 380 provided for an interim President.
     • On 24 January 1950, the Constituent Assembly (which was functioning as the interim Parliament) elected Dr. Rajendra Prasad as the interim President of India.
  2. First Presidential Election
     • Happened on 13 May 1952.
     • Dr. Rajendra Prasad became the first elected President.
  3. Special Achievement –
     • Dr. Rajendra Prasad is the only person who became President twice.
     • His tenure was nearly 12 years (the longest as President of India).

Article 62: Election to fill vacancy in the office of President

• The election of the new President will be completed before the term of the President ends.
• If the office of the President becomes vacant due to any reason (death, resignation, impeachment etc.), then elections will be held within 6 months from the date of vacancy.
• The elected person shall hold the office of President for a term of 5 years from the date on which he enters upon his office (subject to Article 56).

Article 72: Pardoning powers of the President

• Power to grant pardon and commute sentences: The President has the power to grant pardon, suspension, remission or commutation of sentence of a convicted person in the following cases:
  1. The sentences awarded by the Court Martial include,
  2. In offences relating to a subject of the Union Government,
  3. In cases of death penalty.

• This article does not affect the right to legal process against punishment by officers of the armed forces.
• The Governor also has the power to suspend, commute or pardon a death sentence, and this article does not affect that.
• The President’s pardoning power is independent of the judiciary; it is an executive power.
• The President does not sit as a Court of Appeal when exercising this power.
• He can exercise this power only on the advice of the Union Cabinet.
• There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.
• A mercy petition cannot be filed again (once rejected).
• There is no time limit set for deciding on a clemency petition.
• The process of pardon is generally under the Home Ministry.
• Kehar Singh vs. Union of India (1989)
  • The pardoning power is constitutional.
  • The offender does not have the right to an oral hearing before the President.
  • This is a discretionary power but will be based on the advice of the Council of Ministers.
• Maru Ram vs. Union of India (1980)
  • The power of the President is subject to judicial review.
  • The use of power should not be arbitrary or mala fide.
• Sri Haran alias Murugan vs Union of India (2001)
  • Unnecessary delay in mercy petition is a violation of Article 21 (right to life).
• Ipuru Sudhakar vs. Andhra Pradesh (2006)
  • If the pardon is motivated by caste, religion or politics → judicial review is possible.
• Pardoning power of the President

1. Pardon – In this, both the punishment and imprisonment are removed and the convict is completely freed from all punishments, sentences and disqualifications.
2. Commutation – This means reducing the punishment by changing its form. For example, commuting the death penalty to rigorous imprisonment, which can then be converted into simple imprisonment.
3. Remission –This means reducing the term of the sentence without changing its nature. For example, reducing the sentence from two years’ rigorous imprisonment to one year’s rigorous imprisonment.
4. Respite  –It means reducing the sentence originally awarded to a convict in certain special circumstances, such as physical disability or pregnancy.
5. Reprieve –It means a temporary stay of a sentence (especially the death penalty). Its purpose is to give the convicted person time to plead for a pardon or a commutation of the sentence.

Comparative powers of the President and the Governor in matters of pardon

The Supreme Court has laid down the following principles in various cases on the pardoning power of the President:

1. No right to oral hearing: A person seeking mercy does not have the right to an oral hearing from the President.
2. Re-examination of the evidence: The President may re-examine the evidence, and his opinion may differ from that of the court.
3. Cabinet consultation: The President will exercise his pardoning power on the advice of the Union Cabinet.
4. No need to give reasons: The President is not bound to give reasons for his order.
5. Penalty and relief for evidentiary mistake: The President can grant relief not only on penalty but also for evidentiary mistake.
6. No need for court directions: The President does not need any guidelines laid down by the Supreme Court to exercise his power.
7. Limits of Judicial Review: This power of the President is not subject to judicial review except where the President’s decision is arbitrary, unreasonable, malicious or discriminatory.
8. A fresh petition cannot be filed: When a previous petition for pardon is rejected by the President, a second petition cannot be filed on it.

Powers and duties of the President

The powers and functions exercised by the President are as follows: 

1. Executive powers
2. Legislative powers
3. Financial powers
4. Judicial powers
5. Diplomatic powers
6. Military powers
7. Emergency powers

1. Executive Powers

1. The nature of executive power

• Article 53 – The executive power of the Union is vested in the President.
  • The President can exercise these powers –
    • can do it himself or
    • He can do this through his subordinate officers.
• Article 74 – The Council of Ministers headed by the Prime Minister advises the President on his affairs.
• 42nd Amendment (1976) – President bound to accept the advice of the Council of Ministers.
• 44th Amendment (1978) – The President may return the advice once for reconsideration; but if the same advice is given again, it must be accepted.
• Article 160 – Provides for the discharge of the functions of the Governor in emergent or extraordinary circumstances.
• Shamsher Singh v. State of Punjab (1974)– The President and the Governor are nominal heads of government in parliamentary government. It was held that the President should act only on the advice of the Council of Ministers.
• Dr. Ambedkar:“The position of the President is the same as that of the British monarch—he is the head of the nation, not of the government.”

2. Formation and functions of the Council of Ministers

• Article 75(1)– The Prime Minister is appointed by the President.
  • The President appoints other ministers on the advice of the Prime Minister.
• The President appoints the leader of the majority party/coalition in the Lok Sabha as the Prime Minister (not a constitutional provision, but a convention).
• Harsharan Verma v. Charan Singh (1984) – Appointment of the Prime Minister is the discretion of the President.
• U.N.R. Rao v. Indira Gandhi (1971) – The President can appoint a Prime Minister even after the dissolution of the Lok Sabha.
• It is the prerogative of the Prime Minister to allocate portfolios to the ministers.
• Article 77– The President makes rules for allocation of business.
• Article 75(2) – Ministers hold office “during the pleasure” of the President (in effect, the President acts on the advice of the Council of Ministers).
• Article 75(3) – The Council of Ministers is collectively responsible to the House of the People.
• Article 75(4) – The President administers the oath of office and secrecy to the Ministers.
• The ministers submit their resignation to the President.
• All executive action of the Government of India is taken in the name of the President [Article 77(1)].
• The President made the Allocation of Business Rules, 1961.

3. Appointments

• The President makes appointments to the following key positions: By warrant of the President
  • Judges of the Supreme Court [Article 124]
  • Comptroller and Auditor General [Article 148]
  • Governor [Article 155] and in special circumstances [Article 160]
  • Judges of High Courts [Article 217]
  • Administrators/Lieutenant Governors of Union Territories [Article 239]
  • Chairman/Member of the National Commission for Scheduled Castes
  • Chairman/Member of the National Commission for Scheduled Tribes
  • Chairman/Member of the National Commission for Backward Classes

Appointment of Chief Minister (Special Provisions):

• Delhi – The Chief Minister of Delhi is appointed by the President under Article 239AA (5) of the Constitution.
• Puducherry – The Chief Minister is appointed by the President under Section 45 of the Government of Union Territories Act, 1963.
• This Act was passed by Parliament under Article 239A.
• Jammu and Kashmir (Union Territory from 31 October 2019) – Here the provision for appointment of the Chief Minister is made by the Lieutenant Governor.
• Thus, in Delhi and Puducherry the power of appointment lies with the President, whereas in Jammu and Kashmir this work is done by the Lieutenant Governor.

• Chairman/Members of the UPSC and the Joint Commission [Article 316]
• Chief Election Commissioner and other Election Commissioners [Article 324]
• Chairpersons, Vice-Chairpersons and Members of National Commissions –
  • Scheduled Castes [Article 338]
  • Scheduled Tribes [Article 338A]
  • Backward Classes Commission [Article 338B, 102nd Amendment]
• Note : All these appointments are made by the President on the advice of the Council of Ministers and not on his own will.

4. Constitution of commissions and councils

• Inter-State Council (Article 263)
• Finance Commission (every 5 years) [Article 280]
• Commission for the Administration of Scheduled Areas/Tribes [Article 339(1)]
• Backward Classes Commission [Article 340] (Kaka Kalelkar Commission 1953, Mandal Commission 1978, Rohini Commission 2017)
• Official Languages ​​Commission [Article 344(1)]
• Special Officer for Linguistic Minorities [Article 350B]

5. Power to remove from office

• Constitutional officers who can be removed by the President with the support of Parliament:
  • The President can remove from office the following if both Houses of Parliament address him on the ground of misbehaviour or incapacity through a special procedure:
    • Judges of the Supreme Court – Article 124(4)
    • Comptroller and Auditor General (CAG) – Article 148(1)
    • Judge of the High Court – Article 217
    • State Election Commissioner – Article 243K(2)
    • Chief Election Commissioner – Article 324 (other Election Commissioners may be removed on the recommendation of the Chief Election Commissioner)
• Officers who can be removed by the President on the report of the Supreme Court:
  • Based on the investigation and report by the Supreme Court, the President can remove the following:
    • Chairman/Member of the Union Public Service Commission – Article 317
    • Joint Public Service Commission (if constituted) – Article 317
    • Chairman/Member of State Public Service Commission – Article 317 (Power of suspension vests with the Governor)
    • Chairman/Member of the National Commission for Scheduled Castes
    • Chairman/Member of the National Commission for Scheduled Tribes

6. Office at the pleasure of the President

• Union Minister [Article 75(2)]
• Attorney General of India [Article 76]
• Governor [Article 156]
• Lieutenant Governor/Administrator (in Union Territories)
• Chief Ministers and Ministers of Delhi and Puducherry (Article 239AA, 1963 Act)
• Members of the Defence and Civil Services [Article 310(1)]

7. Other powers

• Administration of Union Territories [Article 239].
• Suspension of Delhi Legislative Assembly (Article 239AB).
• Declaring an area as a Scheduled Area (5th and 6th Schedule).
• Directions for granting official recognition to a language in the State [Article 347].

Discretionary Powers of the President:

• Although the President generally acts on the advice of the Council of Ministers, he can exercise discretion in the following circumstances:

1. Powers related to the appointment of the Prime Minister

• In case of clear majority – the President appoints the leader of the party having majority in the Lok Sabha as the Prime Minister.
• In case of a fractured mandate – The President can appoint as Prime Minister any person who, in his opinion, can get the vote of confidence in the Lok Sabha.
• In case of sudden death of the Prime Minister – The President can appoint as Prime Minister a member of the ruling party who has not yet been officially elected as the leader of the party.
  • Example: After the death of Indira Gandhi (1984), President Giani Zail Singh appointed Rajiv Gandhi as Prime Minister.

2. Powers related to the dissolution of the Lok Sabha

• Generally, the President dissolves the Lok Sabha on the advice of the Council of Ministers.
• But if –
  • The government loses its majority in the Lok Sabha
  • or a no-confidence motion is passed against him
  • And if the Council of Ministers still advises dissolution of the Lok Sabha, the President can take a decision at his discretion.

3. Power to dismiss the government

• If the Council of Ministers loses the confidence of the Lok Sabha but does not resign, the President can dismiss the government at his discretion.
• Note: These discretionary powers of the President are not explicitly mentioned in the Constitution, but have evolved from convention and constitutional practice.

4. Resolving constitutional crises.

• Case example:
  • In October 1997, President K. R. Narayanan returned a recommendation for President’s rule in Uttar Pradesh for reconsideration. The Council of Ministers later decided not to proceed with the recommendation.
  • In September 1998, President Narayanan returned the recommendation for President’s rule in Bihar for reconsideration. A few months later, the same recommendation was accepted and President’s rule was imposed in Bihar.

Powers of the President to make rules and regulations

(A) Rule-making powers

1. Rules for allocation of work –
   • The President can make rules for the division of work among the Ministers to make the work of the Government of India more convenient. – Article 77(3)
2. Rules related to joint sitting of Parliament –
   • After consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok Sabha, he may make rules relating to the procedure of joint sittings of the two Houses and of communication between them. – Article 118(3)
3. Dual Membership Status –
   • If a person is elected a member of both Parliament and a State Legislature, the President may make rules regarding the occurrence of a vacancy in his membership. – Article 101(2)

(B) Powers to make regulations

• The President can make regulations for the peace, progress and good governance of the following Union Territories –
  • Andaman and Nicobar Islands – Article 240(1)(a)
  • Lakshadweep – Article 240(1)(b)
  • Dadra and Nagar Haveli and Daman and Diu – Article 240(1)(c)
  • Puducherry – Article 240(1)(d)

2. Legislative Powers

1. Power to summon, prorogue and dissolve the Lok Sabha (Article 85)
2. Can send messages to Parliament on bills and subjects and right to speak in the Houses (Article 86)
3. Delivers a special address to the joint sitting of both Houses at the beginning of the first session after the Lok Sabha elections and at the beginning of the first session of every year (Article 87)
4. The senior-most member of the Lok Sabha is appointed as the Speaker Pro Tem (Article 95(1)).
5. Article 240 – Power to make regulations. Rules/Regulations for Union Territories (UTs).
6. Article 372A – Adaptation power – Adaptation of laws to the Constitution.
7. Articles 373, 392 – Transitional powers – Powers in the initial phase of implementation of the Constitution.
8. Power to summon a joint sitting in case of parliamentary deadlock (Article 108)
9. If there is a difference of opinion between the two Houses on an ordinary bill, a joint sitting can be called (Article 108)
10. Constitutional Amendment Bills require the President’s assent. The President cannot reject them.
11. A money bill can be introduced in Parliament only with the prior permission of the President (Article 110)
12. A bill for altering the boundary, name or area of ​​a state can be introduced in Parliament only with the prior permission of the President.
13. Gets the reports of various constitutional bodies presented in the Parliament.
14. Can issue ordinances in emergency situations when Parliament is not in session (Article 123) (approval required within 6 weeks of the commencement of the first session).
15. Decides on the disqualification of Members of Parliament (after consultation with the Election Commission).
16. Can make regulations and rules for Union Territories.
17. Article 255: Prior permission of the President
    • Obtaining the President’s recommendation or prior approval is merely a procedural matter.
    • If any act is not passed without the prior permission/recommendation of the President, it will not be considered invalid.
    • The President gets the reports of various constitutional bodies presented in the Parliament –
      • Report of the Comptroller and Auditor General of India (Article 151).
      • Recommendations of the Finance Commission and Government Memorandum thereon (Article 281).
      • Report of the Union Public Service Commission and reasons for non-acceptance (Article 323(1)).
      • Report of the National Commission for Scheduled Castes (Article 338(6)).
      • Report of the National Commission for Scheduled Tribes (Article 338A(6)).
      • Report of the National Commission for Backward Classes (Article 338B – 102nd Amendment, 2018).
      • Report of the Commissioner for Linguistic Minorities (Article 350B).
      • Report of the Official Language Commission and Parliamentary Committee.

Article 123: Power of the President to issue ordinances

1. Features

• The President can issue ordinances when both the Houses of Parliament are not in session.
• The power of ordinance is only on those subjects on which Parliament can make laws.
• Approval required within 6 weeks after Parliament reconvenes, otherwise the ordinance automatically expires.
• Maximum period = 6 months + 6 weeks.
• Ordinance has the same force and effect as an Act of Parliament.

2. Judicial approach

• R.C. Coopers v. Union of India (1970) → The validity of an ordinance can be challenged on the basis of whether there was indeed an “urgent need”.
• A.K. Rai vs. Union of India → Ordinances not beyond judicial review.
• 38th Amendment (1975) → Judicial interference was abolished.
• 44th Amendment (1978) → Judicial review restored.
• D.C. Badhwa v. State of Bihar (1988) → Frequent ordinances amount to a fraud on parliamentary democracy.

3. Boundaries

• The Constitution cannot be amended by ordinance.
• An ordinance is also a “law” (Article 13(3)), and can therefore be challenged in court if it violates fundamental rights.
• The President can implement the ordinance with retrospective effect.

4. Feature points

• During an emergency (Article 352 or 356), the President can also issue ordinances on subjects in the State List.
• The Lieutenant Governors of Delhi and Puducherry can issue ordinances on the instructions of the President.
• In Jammu and Kashmir UT, the Lieutenant Governor does not need the President’s permission for this.

5. Examples of abuse

• Many times, when governments do not have majority in the Parliament, they resort to ordinance instead of passing the bill.
• Example: Land Acquisition Ordinance, 2014 (Modi Government) → Use of ordinance due to lack of majority in Rajya Sabha.

3. Financial Powers

1. At the beginning of each financial year, the President presents the Annual Financial Statement to Parliament (Article 112).
2. When necessary, the President causes to be laid before Parliament a statement regarding supplementary, additional or excess grants. (Article 115)
3. The President causes the annual report prepared by the Comptroller and Auditor General (CAG) to be presented before both Houses of Parliament.
4. The Money Bill or the demands for grants in the budget are presented in the Parliament only with the prior permission of the President.
5. The contingency fund of the Central Government (amounting to ₹500 crore) is under the control of the President.
6. The President constitutes a Finance Commission once every 5 years to distribute revenues between the Centre and the States. (Article 280)

4. Judicial Powers

1. When the President considers any question of law or fact to be of public importance, he may consult the Supreme Court. The Court is not bound to give an opinion. [Article 143(1)]
2. Can grant pardons, reprieves, remissions, commutations of sentences, etc. (Article 72)
   • In punishments awarded by military courts.
   • In violation of the laws of the Central Government.
   • In death penalty.

Note :The appointment and removal of judges is not a judicial power of the President, but an executive power. The appointment, transfer, and removal of judges are part of the executive process, not a judicial function.

5. Diplomatic Powers

1. All international treaties and agreements are made in his name (parliament’s approval required).
2. The President grants recognition to foreign ambassadors and high commissioners appointed to India.
3. He represents India internationally.
4. Appoints ambassadors/high commissioners and receives diplomats from foreign countries.

6. Military Powers

1. He is the supreme commander of the armed forces.
2. Appoints the chiefs of the Army, Navy and Air Force.
3. Declares or declares the end of war (with the permission of Parliament).

7. Emergency Powers

• The President has three types of emergency powers:
  1. National Emergency – Article 352
  2. President’s Rule – Articles 356 and 365
  3. Financial Emergency – Article 360

National Emergency – Article 352

Grounds for declaration

• The President can declare a national emergency in case of threat or actual occurrence of war, external aggression or armed rebellion.
• The 44th Constitutional Amendment (1978) removed “internal disturbance” and added “armed rebellion” where there could be objective evidence of it.

Types of national emergencies

1. External emergency – based on war or external aggression.
2. Internal Emergency – On the grounds of armed rebellion.

Declaration process

• Emergency can now be declared only on the written recommendation of the Council of Ministers (44th Amendment, 1978).
• The Emergency was taken out of judicial review by the 38th Amendment (1975), but it was again subject to judicial review by the 44th Amendment.

Parliamentary approval and time period

• The proclamation of emergency without the approval of the Parliament lasts only for 1 month (earlier 2 months).
• To continue further – approval by special majority of Parliament required.
• Once approved, the emergency remains in effect for six months.
• Re-approval is required every 6 months – there is no maximum timeframe.
• If the Lok Sabha is dissolved, the Rajya Sabha can give its approval.
• Its approval is also required within 30 days of the formation of the new Lok Sabha.

Termination Methods

• The President himself can withdraw the proclamation.
• If Parliament does not approve it on time, the emergency automatically ends.
• If 1/10th of the members of the Lok Sabha give a written proposal, then by calling a special meeting within 14 days, the emergency can be ended by a simple majority.
• Note:
  • A special majority of both houses of Parliament is required for the declaration.
  • Only a simple majority of the Lok Sabha is sufficient for termination.
• State legislatures are not dissolved, but the centre-state balance of powers is disrupted.
• The State List laws made during the Emergency remain in force for six months after the Emergency ends.
• The tenure of Parliament, Lok Sabha and State Legislative Assemblies is for 1 year each time.

Impact on fundamental rights

• Article 358 – Suspension of Article 19
  • It is automatically suspended only in case of war or external aggression.
  • Article 19 remains in force in case of armed rebellion (44th Amendment).
  • It applies automatically throughout the country, without the need for a separate order from the President.
• Article 359 – Suspension of other rights
  • The President can suspend the process of enforcement of other fundamental rights.
  • But Article 20 (conviction) and Article 21 (life and personal liberty) cannot be suspended (44th Amendment).
  • Only those rights are suspended which the President explicitly includes in the proclamation.
  • The right to file a petition in the court (Articles 32 and 226) may be suspended.
  • It does not come into force automatically, but the President has to make a separate declaration.

President’s Rule – Articles 356 and 365

• Definition:The President takes over the rule of the states in case of failure of the constitutional machinery.
• Article 355:
  • The Union is responsible for:
    • Protect the states from external attacks.
    • Prevent internal unrest.
    • Ensure governance as per the Constitution.
• Article 356:
• Declaration of President’s rule due to failure of constitutional machinery.
• Two bases:
  • Governor’s Report
  • The President himself has confidence (without the Governor’s report)

Article 365:

• If the state does not follow the instructions of the Union, it will be considered a constitutional failure.

Procedure for President’s Rule:

• Proclamation:
  • By the President (Published in the Gazette)
  • Approval by simple majority of Parliament is required within 2 months.
• Duration:
  • Up to 6 months at a time.
  • Maximum: 3 years.
  • Conditions for extension beyond 1 year:
    • National Emergency (Article 352) should be imposed in the country.
    • The Election Commission should declare that elections are not possible.
• termination:
  • The President can withdraw it at any time at his will.
  • Parliament’s approval is not required.

Effects of President’s Rule:

• Dissolution of State Government, Chief Minister, Council of Ministers.
• The Governor acts as the representative of the President.
• Parliament can make laws on state subjects.
• The state legislature can be suspended or dissolved only if both houses of Parliament approve it.
• State budget passed by Parliament.
• Fundamental rights and the High Court are not affected.

judicial review:

• 38th Constitutional Amendment (1975):
• Excluded from judicial review.44th Amendment (1978): Judicial review reintroduced.
• S.R. Bommai case (1994):
  • Judicial review of Article 356 possible.
  • President’s rule can be revoked in case of misuse.
• First time – Punjab (1951), Assembly suspended.
• First time the Legislative Assembly was dissolved – Andhra Pradesh (1954).
• Most states simultaneously –
  • 1977: janata government in 9 states.
  • 1980: Indira Gandhi in 9 states.
  • 1992: After the Babri demolition, in 4 states (Uttar Pradesh, Madhya Pradesh, Rajasthan, Himachal).
• Most used – during the reign of Indira Gandhi.
• Longest President’s rule – Jammu and Kashmir (18 July 1990 – 9 October 1996, total 6 years 2 months 20 days).
• Shortest President’s Rule – Karnataka (10–17 October 1990) and Bihar (28 March – 4 April 1995) = 8 days.
• States where President’s rule has never been imposed (till 2020) – Chhattisgarh and Telangana.
• Most number of President’s Rule (till 2020) –
  • Kerala, Punjab, Uttar Pradesh = 10 times.
  • Manipur and Bihar = 8 times (but Manipur has a total of 10 administrative interventions, including 2 under Section 51 of the Union Territories Act, 1963).

• Dr. Ambedkar had said that this article would be like a “Dead Letter” and would be used only in extremely exceptional circumstances.
• Sarkaria Commission (1983):
  • Use of Article 356 should be the last option.
  • The majority test of the Assembly should be held within the House.
  • The proclamation of President’s rule should be placed in the Parliament.
  • The Assembly should not be dissolved before the permission of the Parliament.

Financial Emergency – Article 360

• This article applies when:
  • The financial stability of India or any part thereof is in danger.
  • The country’s economic credibility is falling.
• Announcement:It is done by the President.
• Approval:
  • Approval by simple majority from Parliament is required within 2 months from the date of announcement.
  • Simple majority = majority of the members present and voting.
• Duration:
  • If the Lok Sabha is dissolved while the financial emergency is being declared, or if it dissolves before it has been approved within two months, the declaration will remain in effect for thirty days after the first sitting of the reconstituted Lok Sabha, subject to the approval of the Rajya Sabha within this period.
  • Once approved by both Houses of Parliament, the financial emergency will remain in effect indefinitely until revoked.
  • It indicates the following:
    • Its maximum time limit has not been fixed.Parliament’s re-approval is not required to continue it.
    • The President may revoke a financial emergency at any time by a subsequent proclamation.
    • Such a proclamation does not require parliamentary approval.
• Judicial review:
  • Judicial review of Article 360 ​​is also possible.
  • It was excluded from judicial review in the 38th Amendment (1975), but judicial review was restored again in the 44th Amendment (1978).
• Effects of the financial emergency
  • The Union Government has the power to give financial directions to the states.
  • The salaries and allowances of employees of Union and State services may be cut.
  • Even the salaries of the President, Supreme Court and High Court judges are likely to be cut.
  • Money bills passed by the State Legislature can be reserved for the President’s assent.
• Historical situation:
  • Till now, financial emergency has not been declared even once in India.
  • It was not implemented in 1991 despite a severe economic crisis.
  • This can be compared to America’s ‘National Recovery Act’ of 1933.

Review of emergency provisions

Criticism:

1. A blow to the federal structure
2. Fears of the President becoming autocratic
3. Financial autonomy of states ends
4. Suspension of Fundamental Rights

Vote in favor

• Alladi Krishnaswamy Iyer: He called these provisions “companions of the Constitution”.
• Mahavir Tyagi: These were called the country’s “safety valves”, essential for protecting the nation in times of crisis.
• Dr. B.R. Ambedkar: The Indian Union was described as “unique” because it could become a fully unitary state in an emergency, which is not possible in any other federal system.

Third Emergency

Background of 1975 Emergency

• National Emergency has been declared three times in the history of India so far –
  1. 1962 – Due to China war (on external aggression)
  2. 1971 – Due to Indo-Pak war
  3. 1975 – Due to internal disturbance
• The Third Emergency is considered the most controversial and historically the most important.

Declaration of Emergency

• Date: June 25, 1975
• President who made the announcement: Fakhruddin Ali Ahmed
• Prime Minister: Indira Gandh
• Constitutional Provision: Article 352(1) – “Serious threat to the security of India by internal disturbance”
• Reason given: Internal unrest and instability in the country poses threat to national security
• The President made this announcement on the advice of Prime Minister Indira Gandhi.

Events Leading to the Emergency

• Judicial Challenge:
  • On June 12, 1975, the Allahabad High Court declared Indira Gandhi’s Lok Sabha membership illegal.
  • The court barred him from holding any constitutional post for 6 years.
  • This decision came in the Rajnarayan vs Indira Gandhi case.
• Political protests and mass movements:
  • Jayaprakash Narayan (JP Movement) gave the slogan of “Total Revolution” and demanded the resignation of Indira Gandhi.
  • There were massive student movements, labor strikes, and opposition solidarity.
  • Anarchy and administrative instability began to spread across the country.
• Government response:
  • Indira Gandhi described the situation as a “threat to national security”.
  • On the night of June 25 itself, the President was made to declare emergency.

Major Actions During Emergency

• Suspension of Fundamental Rights:
  • Article 19 (freedom of expression, association, etc.) suspended
  • Under Article 359, enforcement of fundamental rights in the courts was prohibited.
• Arrest of opposition leaders:
  • Over 60,000 political activists and opposition leaders were arrested.
  • Among them, Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee, Lal Krishna Advani, Chandrashekhar etc. were prominent.
• Press Censorship:
  • Newspapers were strictly monitored and censored.
  • There was a ban on publishing opposing news.
  • Newspapers like “Indian Express” and “Statesman” were warned.
• Constitutional Amendment:
  • 42nd Constitutional Amendment (1976) was passed.
  • Under this, the government increased the powers of the Parliament and the Prime Minister and limited the independence of the judiciary.
• Forced Sterilization:
  • The controversial family planning program launched by Sanjay Gandhi.
  • Under this, many cases of forced sterilization came to light.

End of Emergency

• Declaration Expiration Date: March 21, 1977
• Duration: Approximately 21 months (25 June 1975 – 21 March 1977)
• President: Fakhruddin Ali Ahmed (died during this term)
• New elections: Lok Sabha elections were held in March 1977.

Results:

• The Congress Party suffered a crushing defeat.
• Janata Party formed the government at the Centre for the first time.
• Morarji Desai became the first non-Congress Prime Minister of India.

Constitutional and Judicial Review

• ADM Jabalpur vs. Shivkant Shukla (1976):
  • The Supreme Court said that citizens do not have the right to habeas corpus (judicial protection) during an emergency.
  • This decision was later widely criticized.
• 44th Constitutional Amendment (1978):
  • The Janata government introduced reforms to prevent a recurrence of the Emergency:
  • The words “Internal Disturbance” were removed and “Armed Rebellion” was added.
  • Now emergency can be imposed only on the written recommendation of the cabinet.
  • Civil rights were given stronger protection.

Veto power of the President (under Article 111)

• After a bill is passed by Parliament, it becomes law only when the President grants his assent. The President has three options:
  • To give assent to the bill.
  • To reserve the Bill for assent.
  • Returning the bill (if it is not a money bill) to Parliament for reconsideration.
• If the Parliament passes the bill again with or without amendment, it is mandatory for the President to give his assent.

Types of Presidential Veto Powers

Types of veto	Description	Applicable in India
Absolute veto	The President disapproves of the bill; the bill lapses.	✅ Yes
Suspensive veto	The President returns the bill to the Parliament for reconsideration.	✅ Yes
Pocket Veto	The President does not take any decision on the bill indefinitely.	✅ Yes
Privileged veto	Applicable only in the United States; the bill can only be repealed by a supermajority.	❌ No

Absolute Veto

• The President rejects the bill outright.
• Use in two situations:
  • In case of a Private Member’s Bill.
  • A government bill, when after it has been passed by Parliament, the Cabinet resigns and the new Cabinet does not support the bill. / The Lok Sabha is dissolved and the new Parliament refuses to do so.

• Example:
  • 1954: Dr. Rajendra Prasad deferred decision on PEPSU Appropriation Bill.
  • 1991: Dr. R. Venkataraman rejected the MPs’ Salary Bill.

Suspensive Veto

• The President can return the bill to the Parliament for reconsideration.
• If the Parliament again passes the bill with a simple majority, then the President is required to give his assent.
• This does not apply to Money Bills.

Pocket Veto

• The President neither gives assent to the bill nor disapproves of it nor returns it for reconsideration.
• Since there is no time limit set in the Constitution, the President can keep the bill pending indefinitely.
• Example: 1986: President Giani Zail Singh kept pending the Indian Postal (Amendment) Bill.

Note:  

• Constitution Amendment Bills must be given the President’s assent (24th Constitutional Amendment, 1971).

Presidential veto power over state legislatures

Options of the Governor (Article 200):

1. To give assent to the bill.
2. Securing approval.
3. Returning the bill for reconsideration (if it is not a money bill).
4. Reserving the bill for the consideration of the President.

Choice of the President (Article 201):

1. To give assent to the bill.
2. Securing approval.
3. Directing the Governor to return the Bill (if it is not a Money Bill) to the State Legislature for reconsideration.
4. Even if the state legislature passes the bill again and sends it, the President is not bound to give his approval.
5. There is no time limit; the President can exercise a pocket veto.

Power to consult the Supreme Court (Article 143)

• Source – Section 213 of the Government of India Act, 1935.
• There is no such provision in America and Australia, whereas there is in Canada.

• (A) Article 143(1)
• If the President feels that
  • (i) any question of law or fact has arisen or is likely to arise.
  • (ii) the question is one of public importance.
    • Then he can send the question to the Supreme Court for consideration.
    • The court has the right to give or refuse an opinion.
• (B) Article 143(2)
  • Disputes related to new treaties, agreements, and settlements made before the Constitution came into force (before 26 January 1950).
  • These cases are excluded from Article 131 (original jurisdiction of the Court).
  • In such cases the court is bound to give its opinion to the President.
• (C) Important examples
  • 1960 – Berubari incident (India-Pakistan border dispute).
  • 1993 – Babri Masjid dispute.

Special – The opinion given by the court is advisory, the government is not bound to accept it.

Current veto power related issues

‘State of Tamil Nadu v. Governor of Tamil Nadu’ (2023)

• Limits on Veto Power:
  • The Supreme Court held that neither the Governor nor the President can exercise an absolute veto or pocket veto (pending it indefinitely) on a bill.
  • The President and Governor must assent to, dissent from, or return bills for reconsideration under Articles 200 and 201 of the Constitution.
• Definition of Time Limits:
  • If the Governor decides to reserve a bill for the President, the maximum time will be one month.
  • The President must take a decision on bills sent by the Governor for consideration within three months of receipt.
  • Any delay must be recorded and the reasons must be communicated to the state.
  • If the State Assembly reconsiders and remits the bill, the Governor must assent to it within one month.
  • If the time limit is not met, it will be subject to judicial review, and the state government can file a writ petition (mandamus).
  • State governments must consult the central government before passing bills that require the president’s assent.
• Advice on Unconstitutionality:
  • If a bill is referred to the president on grounds of unconstitutionality, the Supreme Court suggested that the president should seek advice from the Supreme Court under Article 143.
  • However, this advice is not binding.
  • The court clarified that the final authority to interpret the Constitution rests with the constitutional courts, not the executive.
• Judicial Review:
• The president’s decision (under Article 201) can be judicially reviewed, especially if the decision is arbitrarily or malafidely.
• The court held that Tamil Nadu Governor R.N. Ravi’s referral of 10 bills to the president was unconstitutional because it was done after the second bill had been passed.

Comparison of emergency provisions

S.No.	Topic/Point	National Emergency (Article 352)	President’s Rule (Article 356)	Financial Emergency (Article 360)
1	Base	War, External Aggression, Armed rebellion	Failure of the constitutional machinery in the state	India’s financial credibility is at risk / financial instability
2	Approval from Parliament	Within 30 days (1 month)	Within 2 months	Within 2 months
3	Majority to approve	Special majority	Simple majority	Simple majority
4	Duration	6 months → extendable indefinitely	6 months → maximum 3 years	Only once approved and indefinitely
5	Termination	By a presidential proclamation or by a simple majority resolution of the Lok Sabha	By presidential proclamation	By presidential proclamation
6	Impact on fundamental rights	Article 19 automatically suspended (in case of war/invasion), other powers suspended by the President; Articles 20 and 21 unaffected	No effect	No effect
7	Affected area	The whole country or any part thereof	In a state or states	The whole country or any part thereof
8	State Executive and Legislature	Keeps maintained	The executive is dismissed; the assembly is suspended or dissolved.	Keeps maintained
9	Power to make rules	Parliament can also make laws on state subjects.	Parliament can delegate to the President the power to make rules for the State	_
10	Assembly/Lok Sabha tenure	The tenure of the Lok Sabha and the Legislative Assembly can be extended by one year each.	Tenure unaffected	tenure unaffected
11	Judicial review	Might be possible	Might be possible	Might be possible
12	Consultation	Written consultation of the Cabinet is necessary.	Not necessary	Not necessary

Comparison of the veto power of the President and the Governor

Power to issue ordinances

Subject	President (Article 123)	Governor (Article 213)
Jurisdiction	Can issue ordinances on subjects in the Union and Concurrent Lists.	Can issue ordinances on subjects in the State and Concurrent Lists.
Can issue ordinances	When both the Houses of Parliament or any one House is not in session.	When the State Legislature or both Houses are not in session.
Circumstances for issuing ordinances	The President must be satisfied that the circumstances warrant immediate action.	The Governor must be satisfied that the circumstances warrant immediate action.
The need for instruction	The President does not require any direction from anyone else to promulgate an ordinance.	The Governor does not need any direction from anyone else to issue an ordinance, except in certain specific cases.
Discretionary power	The power to issue ordinances is not discretionary; it can only be exercised on the advice of the Council of Ministers headed by the Prime Minister.	The power to issue ordinances is not discretionary; it can only be exercised on the advice of the Council of Ministers headed by the Chief Minister.
Equal force of the Act	An ordinance has the same force as an Act of Parliament and its limitations are also the same as those of an Act of Parliament.	An ordinance has the same force as an Act of the State Legislature and its limitations are also the same as those of an Act of the State Legislature.
Consideration in Parliament/Legislature	When Parliament reassembles, the ordinance is laid before both Houses of Parliament.	When the State Legislature reassembles, the ordinance is placed before the State Assembly or both Houses.
Time limits and revocation	If both Houses of Parliament do not consider the Ordinance within six weeks or a resolution for the repeal of the Ordinance is passed by either House, the Ordinance shall cease to be in force.	If no resolution is passed within six weeks after the State Legislature reassembles, the ordinance will cease to be in force.
Presidential assent by the Governor	The Governor does not require the President’s approval for ordinances relating to state subjects.	The Governor requires prior approval from the President in certain matters, such as:When the President’s assent is necessary for the introduction of a bill in the State Legislature.If the Governor sends a similar bill for the consideration of the President.An Act of the State Legislature may be invalid if it is not approved by the President.

Article 361 – Immunities of the President and Governors and Chiefs of State:

1. He cannot be held accountable before the court for his actions.
   • But Under Article 61, a body or court appointed by either House of Parliament may inquire into the conduct of the President, but this does not affect the right of any person who wishes to take appropriate action against the Government of India or the Government of a State.
2. During the tenure of the President or the Governor, no criminal case can be initiated against him nor can he be arrested.
3. No court can issue an order for the arrest or imprisonment of the President or Governor during his term of office.
4. If any civil proceedings are initiated against him in respect of any personal act of the President or Governor before or after his assumption of office, in which relief is claimed, the following conditions have to be fulfilled before such proceedings can be initiated:
   • Written notice has to be given to the President or the Governor at least two months in advance.
   • The notice requires the party to state their name, address, the nature of the action, and the relief sought. Thus, a civil suit can be filed against the Governor personally only after two months’ prior notice.
   • Note: Article 361 specifies the privileges of the President and the Governor. (The term “Lieutenant Governor” is not mentioned in Article 361.)

Facts about the President

• The President who died during his tenure – 
  1. Dr. Zakir Hussain
  2. Fakhruddin Ali Ahmed (Agriculture Minister)

• President elected unopposed
• N. Sanjeev Reddy
  • He was the Chief Minister of Andhra Pradesh.
  • He lost his first presidential election against V.V. Giri.
  • The only President who also held the post of Speaker of the Lok Sabha.

• Vice President who became President –
  • Dr. S. Radhakrishnan
  • Dr. Zakir Hussain (Governor of Bihar)
  • V.V. Giri (Governor of Kerala)
  • R. Venkataraman
  • Dr. Shankar Dayal Sharma (Governor of Maharashtra)
  • K.R. Narayanam

• Acting President – 
  • V.V. Giri – after the death of Zakir Hussain
  • M. Hidayatullah (Chief Justice of India)
  • B.D. Jatti – after the death of Fakhruddin Ali Ahmed

• Chief Minister before becoming President:
  • Neelam Sanjeev Reddy
  • Gyani Zail Singh
  • Shankar Dayal Sharma
• Shortest tenure –Dr. Zakir Hussain
• Longest tenure –Dr. Rajendra Prasad
• Neelam Sanjiva Reddy resigned from the post of Speaker of the Lok Sabha twice, in 1969 and 1977. In 1977, Neelam Sanjiva Reddy was elected President unopposed.
• K. Subbarao (former Chief Justice) contested the presidential election.
• Presidential and Vice Presidential Elections Act, 1952 – It was amended in the year 1997.
• Presidential Emoluments and Pension Act – It was amended in the year 2008.
• Example of the appointment of an Acting President: Following the death of Dr. Zakir Hussain in May 1969, the then-Vice President, V.V. Giri, became Acting President. He later resigned to contest the presidential election. Subsequently, Chief Justice of India, M. Hidayatullah, served as Acting President from July 20, 1969, to August 24, 1969.

President of India

S.No.	Name	concerned states	tenure	Special Facts/Notes	Main competitor
1	Dr. Rajendra Prasad	Bihar	1952–1957	First President of India (interim + elected).Proposal – NehruApproval – PatelElected twice in 1952 and 1957, the only re-elected president to date.Longest-serving president (12 years).Nehru was the first Prime Minister to be sworn in the most number of times (3 times).He has been the president of a political party (Congress).Gave the maximum number of addresses under Article 87.	K. T. Shah
2			1957–1962		N. N. Das
3	Dr. Sarvepalli Radhakrishnan	Tamil Nadu	1962–1967	Philosopher and thinker, Bharat Ratna (1954) before becoming President.First South Indian President.First Philosopher President – ​​Called “Philosopher King”.He was elected unopposed as Vice President twice and President once.1962 India-China war during his tenure as President.For the first time a woman (Indira Gandhi) was sworn in as Prime Minister.Opponent in the election: Ch. Hariram.	C. H. Ram
4	Dr. Zakir Hussain	Hyderabad	1967–1969	First Muslim President.First president to die while in office.Opponent in the election: K. Subbarao (former CJI).Maximum number of contestants in the election – 17The first President to read the Presidential Address (Article 87) in Hindi.He did not appoint any Prime Minister while he was the President.	K. Subbarao
5	V. V. Giri	Odisha	1969–1974	First acting president, later elected.In 1969, he became an independent candidate and defeated Congress candidate Neelam Sanjeev Reddy.1971 Indo-Pak war during his tenure as President.Prominent leader of pre-independence AITUC (Trade Union).First Vice President to resign and contest the presidential election.win with the fewest votes	Neelam Sanjeev Reddy
6	Fakhruddin Ali Ahmed	Delhi	1974–1977	Second Muslim President.Signed the declaration of emergency in 1975.Second president to die while in office.Provision of security deposit for the first time in elections.	T. Choudhary
7	Neelam Sanjeev Reddy	Andhra Pradesh	1977–1982	The only unopposed elected president.The youngest person to ever become President.First Chief Minister of Andhra Pradesh.The first person to become President from the position of Speaker of the Lok Sabha.	Unopposed
8	Giani Zail Singh	Punjab	1982–1987	First Sikh President.Chief Minister of Punjab and the first Home Minister to become President.He was the President at the time of Indira Gandhi’s assassination (1984).Use of pocket veto (Post Office Amendment Bill).	H.R. Khanna
9	R. Venkataraman	Tamil Nadu	1987–1992	Worked with four Prime Ministers (Rajiv Gandhi, V.P. Singh, Chandrashekhar, Narasimha Rao).He has been the Finance and Defence Minister.Member of the Constituent Assembly and freedom fighter.	V. R. Krishna Iyer
10	Dr. Shankar Dayal Sharma	Madhya Pradesh	1992–1997	Worked with four Prime Ministers (Narasimha Rao, Vajpayee, Deve Gowda, Gujral).Former Chief Minister of Madhya Pradesh, Governor of many states.He was also the Congress President and Vice President.	G. G. Swale
11	K. R. Narayanan	Kerala	1997–2002	First Dalit President.Winning the election by the largest margin of votes.While being the President, he returned the recommendation of the Central Government (President’s rule) for reconsideration – increased the dignity of the post of President.Former diplomat, former Vice Chancellor of JNU.	T. N. Seshan
12	Dr. A.P.J. Abdul Kalam	Tamil Nadu	2002–2007	“Missile Man of India”, renowned scientist.First non-political president.Contesting against female candidate Lakshmi Sehgal in the election.The most popular president among the people.	Lakshmi Sehgal
13	Pratibha Patil	Maharashtra	2007–2012	First woman president.She has been the Governor of Rajasthan.Bhairon Singh Shekhawat is the rival in the election.	Bhairon Singh Shekhawat
14	Pranab Mukherjee	West Bengal	2012–2017	Four decades of experience in politics, senior Congress leader.Former Finance, Defence and External Affairs Minister.Deputy Chairman of the Planning Commission.Election opponent: P.A. Sangma.	P. A. Sangma
15	Ram Nath Kovind	Uttar Pradesh	2017–2022	Second Dalit President.Governor of Bihar before the elections.Opponent in the election: Meira Kumar (first woman Speaker of the Lok Sabha).	Mira Kumar
16	Draupadi Murmu	Odisha	2022–present	First tribal (ST) President.The second woman President of India.The first President born after independence.She has been the Governor of Jharkhand and a member of the Odisha Legislative Assembly.Election rival: Yashwant Sinha.	Yashwant Sinha

Other important facts related to the presidential election

• So far Elections completed – total 16
• Persons – 15 (Rajendra Prasad twice)
• Total number of people sworn in: 18 people

So far, 7 women have contested the presidential election in India.

Serial No.	Female candidate	Year	Comment
1	Smt. Krishna Kumar Chatterjee	1952	first woman candidate
2	Smt. Manohara Holkar	1967
3	Smt. Phoolcharan Kaur	1969
4	Mrs. Lakshmi Sehgal	2002	She was associated with Netaji Subhash Chandra Bose’s Azad Hind Fauj.
5	Smt. Pratibha Patil	2007	India’s first woman President
6	Smt. Meira Kumar	2017	Former Lok Sabha Speaker
7	Smt. Draupadi Murmu	2022	India’s first tribal woman President

Special Facts

• Pratibha Patil (2007) – First woman President.
• Rajendra Prasad (1957) and Neelam Sanjiva Reddy (1969) – candidates nominated against the wishes of the incumbent Prime Minister.
• Vice Presidents turned Presidents – Radhakrishnan, Zakir Hussain, V.V. Giri, Venkataraman, Shankar Dayal Sharma and K.R. Narayanan.
• Acting President –
  • 1969 – Justice M. Hidayatullah (after the resignation of V.V. Giri)
  • 1977 – B. D. Jatti (after the death of Fakhruddin Ali Ahmed)
• Former Chief Ministers who became President – ​​Neelam Sanjeev Reddy, Giani Zail Singh, Shankar Dayal Sharma.
• Most contested elections – Chaudhary Hariram (5 times).

The historic presidential election of 1969

• After the death of President Dr. Zakir Hussain, mid-term presidential elections were held in 1969.
• The main contest was between the then Vice President V.V. Giri and the official Congress candidate Neelam Sanjeev Reddy.
• At that time, Prime Minister Indira Gandhi appealed to MPs and MLAs to vote according to the “voice of conscience”, breaking party lines.
• This is the only presidential election in India in which the winner was decided by counting second preference votes and V. V. Giri was elected President.
• Neelam Sanjeev Reddy resigned from his post of Lok Sabha Speaker to contest this election.

Justice and presidential elections

• K. Subbarao – former Chief Justice of the Supreme Court (CJI) who contested the presidential election.
• H.R. Khanna and V.R. Krishna Iyer – former Supreme Court judges who contested the election.

Regional aspects

• Most Presidents from Tamil Nadu (3):
  • Dr. Sarvepalli Radhakrishnan
  • R. Venkataraman
  • Dr. A.P.J. Abdul Kalam