Introduction
The President of India is the head of the State in India. He is the first citizen of India and serves as a symbol of the nation’s unity, integrity, and solidarity. India’s government is structured on a cabinet system. As a result, the Indian President, like the King or Queen of the United Kingdom, is a constitutional head—all executive functions are theoretically vested in him, albeit they are practically wielded and implemented by the cabinet. This is because there is a clear provision in the constitution which mentions that ‘there shall be a council of minister to aid and advise the President‘.
As the Executive Head of State, the President of India has a wide range of powers that he can use personally or through subordinate authorities in accordance with the Constitution. These Powers and Functions of President of India can be divided into the following categories:
1. Executive Powers and Functions of President of India [Article 77]
All executive functions are carried on in the name of the President, and authenticated in the manner prescribed by rules to be made by the President.
The President of India holds the power to appoint:
- the Prime Minister and on his advice other Ministers of the Union,
- the Judges of the Supreme Court, and the High Courts,
- the Governors of the States, the Attorney-General,
- the Chairman and Members of the Public Service Commission,
- the Members of the Finance Commission and Official Commissions (e.g., Election Commission),
- Special Officer for Scheduled Castes and Scheduled Tribes,
- Commission to report on the administration of Scheduled Areas Commission to investigate into the conditions of backward classes, and
- Special Officer for linguistic minorities.
The President is rarely able to exercise discretion in appointing the Prime Minister. Normally, he is obligated to summon the leader of the political party that wins an absolute majority in the Lok Sabha to become Prime Minister and form the government. Only in extreme instances does he have discretionary authority in this subject, for instance, when no political party obtains a clear absolute majority and no Council of Ministers can be established without a coalition of parties, the President can select the Prime Minister using his discretion.
He also has the authority to dismiss his Ministers, Governors, Attorney-General, Supreme Court Judges and Chief Justice, Chairman and Members of the Union Public Service Commission, and Chairman and Members of the State Public Service Commission, subject to a defined procedure. However, he can only use these powers with the approval of the Prime Minister, who is the Council’s head.
Other than this, the President of India can also ask the Council of Ministers to prove their majority or support of the Lok Sabha. In line with Article 75(2) of the constitution, he can dissolve the Union Council of Ministers if he believes that the Ministry does not have majority support.
2. Legislative Powers and Functions of President of India
The President of India is an integral part of the Parliament. He holds the power to summon the houses of Parliament (separately or jointly), giving reasons. He can also prorogue the houses, address them and even dissolve the Lok Sabha. He ceremonially addresses the first session of both the houses post general elections to the Lok Sabha.
According to Article 86(2), in cases of serious disagreement with the Council of Ministers, he can even pass messages to either or both the houses. The President also nominates 12 members to the Upper Chamber (Rajya Sabha), who have excelled in Art, Literature, Science, Medicine or other fields. This is done to ensure representation to all sections of population, who may not occupy such positions through elections.
Under Article 200, the President of India holds the power to consider a bill passed by a State Legislature, when such bill is referred by the Governor.
3. Ordinance-making Power of President [Article 123]
The President has the ability to issue an ordinance when one or both Houses of Parliament are not in session and the President believes that situations exist that require prompt action. Furthermore, the ordinance he issued has the same legal effect as a Parliamentary Act. This power has been vested so as to enable the President to deal with serious circumstances that arise while the houses are not in session.
The President also has the authority to revoke the ordinance at any time. Ordinances of this nature, however, must be presented to both Houses of Parliament. The ordinance must also be approved by the Parliament within six weeks of the Parliament’s return of session.
However, the ‘satisfaction’ of the President on the need to issue an ordinance refers not to his personal satisfaction; rather, it refers to the satisfaction of the Cabinet, on whose advice the President exercises this power.
The President’s ordinance-making power is co-extensive with Parliament’s legislative power, which means it can cover any issue that Parliament has the authority to legislate on. As a result, an ordinance will be null and void if it makes any provision that the Parliament is not authorized to adopt under the constitution. Therefore, an ordinance cannot infringe on fundamental rights.
4. Financial Powers and Functions of President of India
India’s President also has financial authority. Without the President’s approval, no money bill or financial bill can be submitted in Parliament. He or She is required by the Indian Constitution to also present the Annual Financial Statement (Budget) to both Houses of Parliament. The central government’s revenue and expenditure estimates for the coming year are shown in this statement.
It should be noted that without the President’s assent, no proposal for spending money (expenditure) or producing revenue (taxation) for government objectives can be tabled in Parliament.
The President is required to place the report of CAG before the Parliament. He or She also allocates the share of Income Tax between the Centre and the States. Moreover, the President of India constitutes Finance Commission every 5 years. He also controls the contingency funds for unforeseen situations like drought, earthquake, flood, etc. However, all these financial powers are subject to the backing of the Cabinet.
5. Judicial Powers of President of India
The President is vested with judicial powers. This enables him or her to gather the advice of the Judiciary on a query related to law or fact which is of public importance while giving assent to a bill. This advice is however, not binding on President per se. Likewise, the judiciary is bound to offer advise only on the matters of pre-constitutional agreements and treaties.
6. Pardoning Power [Article 72 of the Constitution of India, 1949]
Power of Pardon of the President under Article 72 is different from Judicial Power as the President can grant pardon or reduce the sentence of the court, even if a minimum punishment is specified. He or She can even suspend, remit or commute the sentence in certain cases. This power is founded on consideration of public good and public welfare. It is a power of clemency, exercised to correct judicial errors and undo instances of miscarriage of justice. The decisions concerning pardoning by the President are independent of the views of the Prime Minister or the majority of Lok Sabha, but in most cases, the cabinet is consulted.
As per Article 72, the President of India can pardon, remit, reprieve, respite or commute sentences in the following cases, when: –
- Punishment is for an offence against Union Law
- Punishment is by a Military Court
- Sentence is that of death
Here, Pardon means to rescind both conviction and sentence, leading to release of the offender from all charges and disqualifications. Grant of pardon wipes off the guilt of the accused and brings him or her to the original position of innocence as if he or she had never committed the offence for which he or she was charged. To reprieve means to stay execution of a sentence for pardon or commutation. Commutation refers to substitution of one form of punishment to another of a less harsh nature. Likewise, respite means to award a lesser sentence instead of the prescribed penalty in view of the special facts of the case, such as pregnancy of the offender. Finally, Remission means to reduce the amount of sentences without changing its character.
7. Military Powers of President of India
As the head of State, the President is the Supreme Commander of the Indian Armed Forces. He is entitled to declare war or conclude a peace treaty on the recommendation or advice of the Council of Ministers headed by the Prime Minister. However, the exercise of this power is regulated by the ‘rule of law’. Many important contracts and treaties are moreover, signed in his name. He also appoints the Chiefs of the Service branches of the Army.
8. Emergency Powers [Part XVIII, Articles 352-360 of the Constitution]
The President is vested with vast emergency powers. He or She can impose three kinds of emergencies, namely:
1. Emergency on account of war, external aggression or armed rebellion. (Article 352)
When the security of India or any part of it is threatened by war, armed revolt, or external attack, the President of India may issue a Proclamation of National Emergency for any period of time.
During a Proclamation of National Emergency, the States’ executive power is exercised in line with the Central Government’s orders. Parliament gets the authority to enact legislation on the issues listed in the State List. In other words, the federal nature of the Nation turns into Unitary. The rights embodied in Article 19 stand suspended, but the Article 20 and 21 are not taken away. Also, the term of the Lok Sabha may be extended for 1 extra year.
This type of Emergency has been announced by President Fakhruddin Ali Ahmed on the recommendation of Prime Minister Indira Gandhi on grounds of “internal disturbance” from June 25, 1975 till March 21, 1977. Before that, it was declared on account of the Sino-Indian War and Indo-Pakistan War.
2. Emergency due to failure of Constitutional machinery in the State (Article 356)
This type of emergency can last up to three years at the most. During such an emergency, the President shoulders the executive powers of the State and the Parliament takes over the State’s Legislative assembly. The expenditure is also incurred from the Consolidated Fund of the State, on the approval of the President.
3. Financial Emergency (Article 360)
It occurs when there is a threat to the financial stability or credit of India. It may be extended indefinitely. During such an emergency, the salaries of officials may be reduced, all money bills may require President’s assent, and all State Governments may be ordered to observe measures of financial propriety as directed by the Central Government.
In other words, he or she can proclaim emergency only when he or she is satisfied that the security of the Nation is under threat, or the Government cannot be carried on in accordance with the constitution or if there is financial instability. However, the proclamation must be laid before the houses of Parliament, and be approved within a month.
The President also holds the power to suspend the right to move courts for the enforcement of fundamental rights, except articles 21 and 22.
9. Diplomatic Powers and Functions of President of India
The President represents India in International forums where his presence is ceremonial. He also sends and receives diplomats or Ambassadors, i.e., Indian Foreign Service (I.F.S.) officers. Moreover, all international agreements and treaties are negotiated and concluded in the name of the President, though they’re carried out by the Prime Minister and his Cabinet with the sanction of the Parliament.
10. Veto Power of President of India [Article 111]
After a bill is passed by the Parliament, the President is required to approve it. As per Article 111 of the Constitution of India, when a bill comes before the President, he can either assent or withhold or re-send it for re-consideration. This very control of the President over the bill is referred to as ‘veto power’.
However, even if the president sends a bill back to the Houses of Parliament for re-consideration, the Parliament can resubmit it unchanged, and the President is obligated to grant his approval. The Bill reconsidered by the parliament becomes law with or without the assent of the President after 14 days. But there is no timeframe within which the President is required to proclaim his assent or refusal or return the Bill for reconsideration. He is free to take as much time as he deems necessary. Moreover, he can only exercise absolute veto or successfully drop a bill on the advice of the Council of Ministers. In case of ‘Money Bills’, he can only assent or withhold it, without the option to return it.
There are mainly three kinds of vetoes, namely:
- Absolute veto, which allows the President to withhold his or her assent to the bill. This causes the bill to not become an ‘Act’;
- Suspensive Veto, which allows the President to return the bill to the Parliament for re-consideration; and
- Pocket Veto, which literally means to pocket a bill for endless time, enabling the President to not act upon the bill. However, in case of Constitutional Amendment Bill, the President is bound to give his assent. It has been exercised only once, from 1982 to 1987, by President Zail Singh to prevent the Indian Post Office (Amendment) Bill from becoming an act.
Conclusion
The President of India is known as the Executive Head; however, he is just a symbolic head who is sometimes referred to as a “rubber stamp.” Even though the President has numerous powers, many of them are ineffective. This is because all his powers are subject to the will and whims of the Council of Ministers.
Furthermore, the President is not involved in the day-to-day operations of the state, and the true Executive authority is placed in the Council of Ministers, which is led by the Prime Minister. As a result, the Prime Minister is the true head of state, whereas the President is merely in name.
References
- N. Pandey, The Constitutional Law of India (Central Law Agency, Allahabad, Tenth Edition, 1980).
- Powers and Functions of the President of India, available at: https://legalstudymaterial.com/what-are-the-powers-and-functions-of-president-of-india/ (last visited on August 26, 2021).
- Thirupathi Penthala, “The President of India: Powers and Duties”, 3 International Journal of Advance Research and Innovative Ideas in Education 1565-1569 (2017).
