Presidential Power – A Critical Evaluation

By Adarsh Gautam

The President features a very crucial role in our constitutional system. He is the Head of the State and symbol of the Nation. Shri Shyama Prasad Mukherjee suggested the term ‘Rashtrapati’ probably because the architects of the Indian Constitution were going to construct India as a ‘Rashtra’, and Dr. Panikkar proposed the designation, ‘President’[1]. “There shall be a President of India”[2], Part V of the constitution of India starts with this provision. Each significant authority mentioned in the Constitution is directly or indirectly depends on him. The exact position of the President of India is clouded with a lot of dubiousness. Some of the constitutionalists demanded the president as mere figure head or titular head or rubber stamp or golden zero[3], the reasons for these are, the first cause may be that the President is the head of the State, and not of the Government. Second, India does not have Presidential form of Government. Third, British tradition still preponderate our constitution and at last that, the President works on the recommendation of the Ministers. However, the President of India does not have the only power to sign on the dotted lines but also has the following powers, which clearly shows the position of the President.

The executive power of the Union shall be vested in the President to be exercised either directly or through the subordinate officers in accordance with the constitution[4]. In alternative words, the President will exercise his functions directly without the recommendation of the council of ministers or others, which is said to be as discretionary power. In Samsher Singh v. State of Punjab[5], JUSTICE Krishna Iyer in his accordant judgment ascertained that the President and Governor who are custodians of all executive and rest powers enjoy their constitutional powers solely upon and in accordance with the recommendation of their ministers however there are also few familiar exceptions to it.” While not being dogmatic or thorough, these relate to firstly the selection of the Prime Minister (Chief Minister) restricted by the overriding thought that he ought to command a majority within the House; and second the dismissal of a Government that lost its majority within the House. As per RAY CJ., in Samsher Singh’s Case, the discretionary powers essentially not be laid down, but may be implied as well[6]. Afterwards he speaks about Article 75(1) that says President ought to appoint Prime Minister expresses that the President features a discretion in the appointment. If in a general election no party has come back with a transparent majority to the House of People, then, nevertheless that the ministry continues, in office, until a ministry is sworn in, the President features a real discretion to establish for himself, first, which party or combination of parties can form a stable government and second, which of the persons contesting for leadership is accepted by such party or parties as their leader. He may require the Prime Minister to furnish information with reference to the administration of the affairs of the Union and proposals for legislation[7]. The right of the council of ministers to advise the President does not entitles him to advise to violate a transparently important laws of the Constitution.

The President additionally enjoys military, diplomatic and financial power as he is the supreme commander of the defense forces of India. He represents India in international forums and affairs whenever it is chiefly ceremonial. The President might also send and receive diplomats like Ambassadors and High Commissioners. No money bill can be introduced in Parliament without his or her assent. The President appoints a finance commission each five years.

The legislative powers of the President also are very wide. He is the component part of the Union Parliament[8]. He nominates twelve persons eminent in literature, art, science or welfare work to the Rajya Sabha[9]. He can also nominate two persons belonging to Anglo-Indian community to the Lok Sabha,[10] if he believes, that community is not adequately depicted within the House. If any question arises on whether or not a member of either House of Parliament has become subject to disqualification mentioned in Article 102, the question is referred for the decision of the President, whose call is said to be final.[11] Article 123 deals with the ordinance making power of the President. He promulgates an ordinance on the recommendation of the union cabinet.

Appointment of Chief Justice and Supreme Court/High Court Judges are on him. He takes recommendation from the Supreme Court however it is not to be necessarily followed by him. He has pardoning power: Under article 72, he has been bestowed with power to grant pardon against sanction for an offense against union law, punishment by a martial court, or death sentence. Pardoning powers of the president includes the subsequent types: Pardon with the grant of pardon convicts both conviction and sentence completely absolved, Commutation  with this nature of the punishment of the convict can be changed, Remission reduces the term of the imprisonment , Respite  awards lesser punishment than original punishment by looking at the special condition of a convict, Reprieve stays the execution of the awarded sentence for a temporary period.

He also features three Vetoes, i.e. Absolute, Suspensive and Pocket veto. He can completely quash the bill through his Absolute Veto if it is presented by a private member of the house or if the cabinet resigns before the assent of the President to the bill. In 1954 it was exercised by Dr. Rajendra Prasad and in 1991 by R Venkataraman. When he returns the bill to Indian Parliament for reconsideration it is known as Suspensive Veto of the President but it can be over-ridden by the repassage of the bill by the Indian Parliament even by ordinary majority but he cannot send the money bill for reconsideration and the third is the pocket veto  and bill is kept pending by the President for an undefined period when he uses this veto. In 1986, President Zail Singh used this pocket veto.

He can also exert National, Financial and State Emergency. He may exert the state emergency on basis of Governor’s report of the state or if he is satisfied that governance of the state is unconstitutional, such an emergency must be approved by the Parliament within a period of six months. If the President is satisfied that there is an economic situation in which the financial stability or credit of India is threatened, he/she can proclaim financial emergency as per the Constitutional Article 360. Such an emergency must be approved by the Parliament within two months.

The Indian Constitution has given many provisions, which clearly states that the President of India is not merely a figure head. The principal role of the President is to prevent a parliamentary government from becoming a parliamentary anarchy and it is the Presidential authority that keeps the country and the people bond together. Thus, for the whole country his authority runs like a golden thread throughout the Constitution.

---

[1] B.C. Das, The President of India 69 (S. Chand and Company, 1977)

[2] India Const. art. 52

[3] Durga Das Basu, Commentary of The Institution of India, 357(5^th Ed., S.C. Sarkar & Sons Publications, Calcutta, 1965)

[4] India Const. art. 53

[5] Samsher Singh v. State of Punjab, A.I.R. 1974 SC 2192: (1974) 2 SCC 831

[6] Vol. II, H.M. Seervai, Constitutional Law of India, 2043 (4^th ed., Universal law Publishing Co., 1975) 

[7]India Const. art. 78, (b)

[8] India Const. art. 79

[9]India Const. art.  80

[10]India Const. art. 331

[11] India Const. art. 103